Can You Change a Will Using Power of Attorney?

by A.L. Kennedy

    A power of attorney document gives the person you choose the power to make financial, medical and legal decisions for you if you become incapacitated, according to the 'Lectric Law Library. However, your power of attorney cannot change your will for you in any U.S. state, since all 50 states require you to have the mental capacity to make, change or revoke your will, according to FindLaw.

    Making a Codicil

    Each U.S. state has laws that govern how a testator, or person who makes a will, may change his will. Small changes are usually made using a codicil, which is an amendment or change written on a separate sheet of paper and attached to the original will. A codicil must be executed in the same way a will is, with the testator signing the codicil or directing someone else to sign for him in his conscious presence. Any state laws that require witnesses to a will signing also require witnesses to the signing of a codicil, although they do not have to be the same witnesses that signed your will, according to FindLaw.

    Making a New Will

    To make large changes, you may choose to write an entirely new will rather than use a codicil. The new will should contain a phrase stating it revokes all previous wills, as well as the date the new will was made. The new will must be signed and witnessed according to your state's law. When you are done making your new will, you should completely destroy the prior will by shredding, burning, or blacking out all the text, according to FindLaw.

    Requirements for Changing a Will

    All 50 U.S. states have the same basic requirements for changing a will, either by making a new will or attaching a codicil, according to FindLaw. To change a will, the testator must be "of sound mind," or capable of understanding what the will does and what effect his changes will have. Although the testator does not have to be physically capable of writing the changes or of signing them, he does have to give the directions to someone else to do so. If a person the testator directs signs the will on the testator's behalf, the testator must be conscious and watching the other person sign, according to FindLaw.

    How Power of Attorney Works

    The powers granted by a power of attorney do not begin until the person for whom you have power of attorney is incapacitated. Since the testator of a will must have the mental capacity to understand changes to his will, the person with power of attorney cannot use that power to change the will, since the power of attorney only has power if the testator is incapacitated. The person who has been granted power of attorney may help the testator change his will while the testator is still of sound mind, but she may not use the power of attorney to change the will without the testator's express direction and consent, according to FindLaw.

    About the Author

    A.L. Kennedy is a professional grant writer and nonprofit consultant. She has been writing and editing for various nonfiction publications since 2004. Her work includes various articles on nonprofit law, human resources, health and fitness for both print and online publications. She has a Bachelor of Arts from the University of South Alabama.

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