Can You Change a Will Using a Power of Attorney?
August 21st, 2012
posted by gregoryrosspc
The quick answer is no. A person that holds a Power of Attorney from you cannot change your Will for you. A Power of Attorney gives the person you choose the power to make financial, medical and legal decisions for you if you become incapacitated. 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.
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. To change a Will, the testator (the person making or changing the Will) 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/she 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.
How Power of Attorney Works
The powers granted by a Power of Attorney generally 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/her Will, the person with Power of Attorney cannot use that power to change the Will, since the Power of Attorney usually 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 he/she may not use the Power of Attorney to change the Will without the testator’s express direction and consent.
Call us at 940-692-7800 with your questions about Powers of Attorney or Wills.