Can a Person With Power of Attorney Change a Will?

By Beverly Bird

A power of attorney does not award the agent, or the person receiving it, the right to change the last will and testament of the person who gave it to him. However, it does give the agent broad powers that may potentially be abused. While changes directly to a will cannot be made, a power of attorney may give your agent the ability to turn your last will and testament into an “empty” or useless document by liquidating assets -- or moving them out of reach -- you intend to pass to your beneficiaries.

A power of attorney does not award the agent, or the person receiving it, the right to change the last will and testament of the person who gave it to him. However, it does give the agent broad powers that may potentially be abused. While changes directly to a will cannot be made, a power of attorney may give your agent the ability to turn your last will and testament into an “empty” or useless document by liquidating assets -- or moving them out of reach -- you intend to pass to your beneficiaries.

Powers

A power of attorney allows your agent to act on your behalf to any extent that you specify. You can make a power of attorney permanent or temporary, to be used by your agent only for a limited period of time. You can allow your agent to make any financial move on your behalf or only one transaction. If you are considering giving someone a power of attorney, speak to an attorney in your state first because some powers vary with different state laws.

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Limits

No matter how broad or narrow the powers are that you give your agent, she will generally have to produce the document to make any financial moves on your behalf. Gifts made on your behalf by an agent are also usually restricted by state law, either by cap value -- the maximum allowed to be given -- or by recipient. For instance, it is usually illegal for an agent to make a gift from your estate to herself. You can also revoke your power of attorney at any time. Do it in writing and distribute copies to all financial institutions who might interact with the agent you are “firing.”

Potential Abuse

If you have issued a broad power of attorney to someone, he can theoretically do a great deal of damage to your estate. He can usually sign checks on your behalf and can potentially empty bank and savings accounts earmarked for burial costs, probate expenses or bequests. Some states will allow him to create a trust and move your assets into it so they are immune from probate and unreachable by your beneficiaries. He might be able to change beneficiaries on your insurance policies. He may give assets away, such as vehicles or jewelry. The worst case scenario is that there would be nothing left for your will to transfer to beneficiaries upon your death.

Preventative Measures

There are steps that you can take to protect yourself against abuse by someone holding a power of attorney. For instance, a power of attorney does not have to be given to only one agent at a time. You can name as many co-agents as you like and specify in the document that they cannot act unless they either do so unanimously or by majority. You should also be very specific in the document as to what you are permitting your agent or agents to do. In most states, if your loved ones suspect abuse, they can file a complaint against the agent with the court, asking to have her activities reviewed. (Reference 2)

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What Should Be in a Power of Attorney?

References

Related articles

How to Amend a Durable Power of Attorney

A durable power of attorney allows a person, called the "principal," to designate an agent to legally act on his behalf in certain matters, even if the principal loses the ability to make decisions for himself. A power of attorney grant may be amended to expand an agent’s ability to act on behalf of the principal, to limit the agent’s influence, or to change agents entirely. Amending a durable power of attorney is subject to state law, and the standards can vary.

What Are the Advantages & Disadvantages of Giving Someone Your Power of Attorney?

A power of attorney is a legal document that allows you to name someone you trust to make financial, business and legal decisions on your behalf. It provides a convenient means of having your affairs looked after when you are away or simply unable to do so on your own. The potential for abuse may outweigh the convenience of having an agent with a power of attorney.

Power of Attorney in a Will

Your last will explains what to do with your property once you are gone. Your living will, by contrast, explains what to do regarding your medical decisions if you are alive but incapacitated. A person with power of attorney has the ability to make medical, financial and other decisions on your behalf if you are incapacitated. Although you may give someone power of attorney in your last will, there is little point because your last will has no legal force until you are deceased.

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