A power of attorney can grant broad authority to act on a principal's behalf, but can a POA change a will? Read on for everything you need to know.
Power of attorney documents are a crucial part of a comprehensive estate plan and can be used in a variety of circumstances.
But you may be wondering - can power of attorney override a will?
No, a power of attorney cannot change a principal’s will, but it could grant an agent broad authority over a person’s affairs, including in ways that might impact their estate and how their will is administered.
In this article, we’ll cover some quick basics on powers of attorney, whether a POA can change a will, and how else they might impact the way a will is eventually administered.
A power of attorney (or POA) is a legal document in which a principal gives another person--the agent or attorney-in-fact--the legal authority to act on their behalf.
The principal can grant the attorney-in-fact either broad or limited powers, depending on whether they want to authorize the agent for a specific purpose or to act on their behalf more generally.
Powers of attorney can be used for many purposes. As mentioned, along with wills and trusts, they are a critical part of a comprehensive estate plan. POAs are often used as part of elder care planning, such as if an aging family member needs help managing their own affairs.
But a power of attorney could also be used for a more limited purpose, such as to complete a business transaction while the principal is traveling abroad.
Types of power of attorney based on the type of authority granted include:
Another distinction among types of POA is when they are valid. Different durational types of power of attorney include:
Powers of attorney are relatively straightforward legal documents, and you do not necessarily need a lawyer to execute a POA. But the specific requirements vary by state law, and those laws can change. (For instance, NY updated its POA laws in 2021).
It can therefore be helpful to consult with an experienced estate planning attorney to make sure you observe all the necessary formalities.
So, returning to our question – can a POA change a will? No, a power of attorney cannot change someone’s will, despite the broad powers that a POA document can grant.
A last will and testament is the backbone of any estate plan. At its core, a will is a legal document that outlines who gets your assets after you die, who will manage your estate, and who will take care of your kids if you have minor children.
The requirements for a valid will vary according to state law, but common requirements include:
Sometimes people create handwritten or holographic wills. But whatever the case may be, if there is a properly written will in place, a power of attorney cannot change or rewrite the will.
One way to think of it is that a power of attorney allows an agent to manage your affairs while you are alive, whereas an executor and the probate process dictate what happens to your estate after you pass.
And while an agent could have broad authority depending on the scope of the POA, an agent cannot change the principal’s validly executed will while they are alive, and a power of attorney expires when the principal dies.
Even though a POA cannot change a will, a power of attorney could affect your estate, and thus how your will is eventually executed in practice.
Remember, a power of attorney could have broad authority to make financial decisions on your behalf depending on the type of POA in place. And those financial decisions–-whether it be managing bank accounts, selling property, or managing investments–-could affect both the value of your overall estate as well as specific assets that you intended to leave to particular beneficiaries in your will.
This is why selecting an agent is so important and why many people designate a trusted family member to be their attorney-in-fact. Obviously, it would be problematic if an agent engaged in unfair dealing or acted in bad faith.
But even if the attorney-in-fact takes their fiduciary duty seriously and acts in good faith, as is most often the case, issues could arise if they are not up to the task or unaware of the principal's preferences. For that reason, it is often helpful to speak with your agent to communicate your estate wishes and fill them in on your overall estate planning goals.
Because whether an agent’s actions have a net positive, negative, or neutral effect on the value of your estate, they will be making legally binding decisions on your behalf, which could have unintended consequences if they sell an asset you intended to leave to a particular beneficiary.
So, can a power of attorney change a will? No, but they can authorize significant financial decisions that impact the circumstances surrounding the state of a principal's estate.
A power of attorney is a useful estate planning document for when a person has trouble managing their own affairs. And depending on the scope of the POA, it could grant broad authority over managing financial assets, opening or closing bank accounts, or signing contracts on the principal's behalf.
It is therefore important to select your agent carefully and be sure the person you designate will act in your best interests, and ideally with a full understanding of your priorities and estate planning goals.
If you have questions about how to meet your estate planning goals, it may be worth speaking to a lawyer familiar with the requirements for power of attorney and estate law more generally in your state. And if you do, here are the key questions to ask an estate planning lawyer when you first meet.
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