Can a Power of Attorney Create a Will?

By Stephanie Kurose, J.D.

Can a Power of Attorney Create a Will?

By Stephanie Kurose, J.D.

A power of attorney, or POA, might provide the authority to spend your money or sell your assets, but it is not a substitute for a will; it cannot create, modify, or revoke a will. Both of these are useful legal documents that can help you plan for the future. A will allows you to provide for your loved ones after you die. A power of attorney, however, is a legal document that designates one or more individuals to make decisions or carry out transactions on your behalf when you cannot.

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How a Power of Attorney Works

It enables you to choose an individual known as an agent or attorney-in-fact to make decisions or perform certain duties on your behalf. It can be broad, allowing the person you choose to have the same amount of control you have over your legal and financial matters, or it can be limited, giving them control over a single account or during a particular transaction or type of transaction. You can stipulate the type of authority and define the responsibilities and limitations in the document.

For example, an agent could perform certain duties, such as filing your tax returns, managing your financial accounts, making health care decisions, and signing contracts. Keep in mind that the document does not limit your ability to make your own decisions.

State Limitations and Other Considerations

State law governs powers of attorney. Your state might place certain limitations on what agents can and cannot do, and these can affect how you draft your POA. For example, an agent cannot create or amend your will, but they may be able to create or amend your trust while you are still alive. An agent may also be able to transfer money or other assets into your trust. It is important to be familiar with the laws of your specific state so you create a valid document.

Because the POA gives someone power over important aspects of your life, you should choose an agent carefully. Whether you designate a family member or close friend, you should be able to trust them to make decisions that are in your best interest. It might be especially helpful to first meet with that person to ensure that they want to take on the responsibility. In the power of attorney document, clearly articulate the responsibilities you want your agent to complete as well as any limitations you wish to impose.

You can also elect more than one agent if you want them to share certain responsibilities. Be mindful that this could lead to potential conflicts in the future should they ever disagree.

While a power of attorney cannot create a will, it is still a good idea to create one so that you are prepared for whatever happens in the future. Remember that the POA can provide for broad or limited powers, and can begin or end at any time you choose. Speak to your designated agent to make sure you're both in agreement as to what responsibilities you'd like them to handle when the POA takes effect.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.