Can a Power of Attorney Change a Will?
No, a power of attorney (POA) generally cannot change a will. This is a crucial distinction often misunderstood. While a POA grants broad authority to act on behalf of the grantor (the person granting the power), this authority is strictly limited to financial and healthcare decisions during the grantor's lifetime. A will, on the other hand, only comes into effect after the grantor's death, dictating the distribution of their assets.
This difference is fundamental. The POA's authority ends upon the grantor's death. Therefore, the agent (the person granted the power) cannot amend, revoke, or create a new will on behalf of the deceased. Such actions require the legal capacity of the testator (the person making the will), which is absent after death.
What Can a Power of Attorney Do?
A POA allows the agent to manage various aspects of the grantor's life, including:
- Financial matters: Paying bills, managing bank accounts, investing funds, selling property, etc. This is often the primary reason people establish a POA.
- Healthcare decisions: Making medical decisions on behalf of the grantor if they become incapacitated. This is usually a separate healthcare power of attorney (sometimes called a durable power of attorney for healthcare).
These actions are all performed while the grantor is still alive. The agent acts as a surrogate, making decisions according to the grantor's wishes or best interests (as outlined in the POA document).
What Happens to the Will After Death?
Upon death, the will is submitted to probate court (or a similar jurisdiction). The executor named in the will (or the administrator if there's no will) is responsible for carrying out its instructions, including distributing assets to the beneficiaries. The POA is irrelevant to this process. The will stands independently.
Can a Power of Attorney Affect the Execution of a Will?
While a POA cannot change the will itself, it could indirectly affect how the will is executed. For example, the agent could manage the grantor's financial affairs, ensuring bills are paid, assets are preserved, and that there are sufficient funds to cover the costs of probate.
What if the Will Needs to Be Changed?
If a will needs to be changed or updated, the testator must do so themselves while they are still alive and possess the legal capacity to understand and consent to the changes. This involves creating a codicil (an amendment to the existing will) or writing a completely new will. A lawyer specializing in estate planning is crucial in this process to ensure the legal validity of the changes.
Can a Power of Attorney be Used to Transfer Assets to Avoid Probate?
This is a complex area and often requires legal advice. While a POA might be used to transfer assets during the grantor's lifetime, attempting to use it to avoid probate after death is usually unsuccessful and could be seen as fraudulent. It’s vital to have a well-drafted will and properly planned estate to avoid this issue.
What if someone suspects wrongdoing related to a will and POA?
If you suspect fraud, undue influence, or any other irregularities concerning a will or POA, you should consult with an attorney immediately. They can advise on the proper legal steps to take to protect your interests.
In summary, a power of attorney and a will serve entirely different purposes. While a POA grants authority to manage affairs during the grantor's lifetime, it holds no power over a will after death. Any changes to a will must be made by the testator while they are still alive and of sound mind.
