When you execute a power of attorney, you are appointing someone else to act on your behalf. Financial power of attorney is the most well-known type, but you can also designate an agent to carry out many other tasks. For this reason, power of attorney can be an integral part of estate planning—as long as your agent is reliable and trustworthy.
The short answer to whether an agent can change your will is no. Power of attorney does not allow your agent to revise or change your will. While power of attorney can give an agent significant power, it does have limitations. Keep reading to get a better understanding of what someone can do when you give them power of attorney.
- An agent named by power of attorney can’t change your validly executed last will and testament, but they may be able to control and dispose of your assets during your lifetime.
- Power of attorney can enable your agent to carry out an estate plan on your behalf and prevent the need for guardianship in the future.
- Potential for abuse exists, so it’s critical to choose an agent who is trustworthy and understands your wishes.
- An attorney familiar with drafting powers of attorney will make sure your document is effective for your needs and executed properly.
Power of Attorney Doesn’t Let Someone Change Your Will
It is a ubiquitously accepted legal principle that an agent named by power of attorney cannot change a validly executed will. State law sets out the criteria regarding the validity of a last will and testament and generally requires:
- The person writing the will (also known as the testator) must be of sound mind and at least 18 years old.
- The testator must understand the nature and extent of the assets that comprise their estate and who would be entitled to inherit those assets if the testator died without a will.
- The will must be in writing (with very limited exceptions).
- The will must be signed by the testator, or if they’re physically unable, at the testator’s direction and in the testator’s presence.
- Two witnesses without any conflicts of interest must sign the will in front of each other.
Once your will is properly executed, it remains in effect unless you revoke it. You can only revoke a will by:
- Writing and executing a new will
- Writing a statement that says you want to revoke your previous will, following the same rules as if you were creating a new will
- Physically destroying your will, such as by tearing it up or burning it
Power of attorney does not give someone the ability to revoke your will.
When you die, power of attorney ends and your will (along with state law) dictates what happens to your assets.
What Power of Attorney Allows Someone To Do
Rules about power of attorney may differ between states, but the document typically gives your agent the power to carry out specific tasks, including:
- Handling financial accounts, including closing bank accounts and giving financial gifts
- Managing real estate, including buying, selling, or changing title to property
- Creating and funding trusts
- Retaining professionals such as attorneys, accountants, or social workers
- Speaking to creditors and government agencies
- Making decisions for any business you own
- Caring for your pets
- Managing your digital assets, such as email and cryptocurrency
For example, if you will be overseas for an extended period of time, you might appoint a power of attorney to handle tasks such as managing bills or selling property. If you no longer drive, you might give your adult child power of attorney so they can sell your car for you.
While your agent can’t change your will, power of attorney gives them the power to control (and potentially sell or give away) your assets while you are still alive. That’s why it’s crucial to only give power of attorney to someone you trust.
Limits on What Power of Attorney Allows
One of the most important concepts to understand about power of attorney is that your agent can only make decisions that are within the scope of the powers listed in the document. For example, if your agent wants to sell your car for you, they must show the power of attorney at the DMV to prove the document gives them this power.
This fact means you can set your own limits on what your power of attorney allows. If a task is not expressly described in your power of attorney, the agent can’t make a decision about that matter. You can also prohibit your agent from being able to take any specific action, such as accessing your safe deposit box, by including that in your power of attorney.
Another option is to limit your agent’s authority to a specific range of dates, which may be useful if you’re traveling for an extended period or temporarily are incapacitated due to illness or injury. In addition, you can create a power of attorney for a specific action, such as signing closing documents on the sale of real estate if you can’t be present.
How To Deal With Potential Issues of Abuse
Giving your agent power of attorney does not mean they can steal or mismanage your assets without consequences. Your agent owes you fiduciary duty, which means they are required to act in your best interests or in a manner consistent with how you would act. If they breach this duty, they can be held liable both civilly and criminally. If you believe your agent has done so, you should contact an attorney focused on estate planning or elder law, the police, or your financial institution (if the issue is related to your bank account).
If you want to revoke your power of attorney for any reason, you can give written notice to the person named as your agent. You should provide a copy of the written revocation to any bank or financial institution that has the power of attorney on file.
Frequently Asked Questions (FAQs)
Where do you get the form to set, revoke, or change a power of attorney?
Because power of attorney can give broad, financial power and can easily facilitate an environment for abuse of such power, many states have language that is required by law to be included in your power of attorney document. Additionally, there are likely rules about how a power of attorney is executed. In some states, forms that don’t conform completely won’t be valid. Although you may be able to find common language online, it is always best to have an attorney familiar with your state’s laws prepare your power of attorney document.
For how long is a power of attorney effective?
You can choose a date when your power of attorney will expire, but you could also choose to make your agent’s authority indefinite, also known as durable power of attorney. Financial institutions may sometimes try to decline an agent’s authority under power of attorney, especially if it has been a long time since the document was executed. However, state laws generally require financial institutions to accept these powers of attorney as long as they were prepared correctly.
Do states have time limits for power of attorney?
Some state agencies may impose limits on how long a power of attorney specific to that agency’s work can remain in effect. For example, the California Franchise Tax Board states that powers of attorney duties expire after six years. These limits are another reason why you should consult an estate-planning attorney in your state to answer this question and to draft a power of attorney that is appropriate for your needs.
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