Power of Attorneys (POA) have authority to act as spelled out in the POA document. But can a Power of Attorney change a Will? Generally, a POA does not have the authority to alter or amend a Will. If you believe an Agent under a Power of Attorney changed a loved one’s Will, they may not have had the authority to do that. And you or your loved one may be able to take legal action.
Understand What a Power of Attorney Is.
Before understanding the limitations of what a Power of Attorney can do with respect to a Will, it is important to first understand what a Power of Attorney actually is. A Power of Attorney (POA) is a written legal document that gives the holder authority to act on behalf of another person in legal matters, such as handling financial affairs, making medical decisions, or other tasks. The person granting the POA is referred to as the principal and must have appropriate mental capacity and be at least 18 years old. The individual who acts for the principal is called an attorney in fact or agent.
Can a Power of Attorney Change a Will Before the Testator’s Death?
A POA does not grant the power to create, revoke, or alter a Will or Trust. Put another way, a person acting as agent under a Power of Attorney cannot change someone else’s Will document before the person who wrote the Will dies. Also, depending upon the type of POA and its language, any changes attempted by an attorney in fact using the POA may not be legally binding in the eyes of a court. The person who wrote signed the Will (Testator) needs to personally sign a new Will or Codicil to change the Will document itself.
BUT, the agent under a Power of Attorney could make decisions that run counter to a person’s Will. And there are generally no limitations in the Power of Attorney document requiring the agent to act in accordance with the terms in a Will.
The Agent Has a Fiduciary Duty to the Principal.
The agent named in the Power of Attorney document has a fiduciary duty to act on behalf of the principal (the person who signed the Power of Attorney). If the agent breaches their fiduciary duty, they can be held legally liable.
Did the Agent in the POA Misuse a Vulnerable Adult’s Money or Property?
If the agent named in a Power of Attorney used a vulnerable adult’s money for their personal gain, they may have violated your state’s statutes. In Arizona, A.R.S. Section 46-456 states:
A person who is in a position of trust and confidence to a vulnerable adult shall use the vulnerable adult’s assets solely for the benefit of the vulnerable adult and not for the benefit of the person who is in the position of trust and confidence to the vulnerable adult or the person’s relatives [unless limited exceptions apply].
An Agent name in a POA is clearly “in a position of trust and confidence” to the older, vulnerable adult who named them in the POA. So, if the Agent takes the vulnerable adult’s money or property with the use of a POA, they are liable under the statute. And A.R.S. 46-456 has serious penalties, including up to double damages, liability for attorney’s fees, and being removed as a beneficiary from any deed, will, life insurance, or trust in which they would otherwise benefit.
Can a Power of Attorney Change a Will After the Testator’s Death?
A Power of Attorney ceases to be effective upon the death of the principal (the person who signed the POA). Nevertheless, a POA could still do things (even though they are not supposed to). For example, a POA could record a deed to a deceased person’s house, transferring the house to themselves. That transfer would ultimately be unwound in court. But it would most likely force people to go to court and get a court order saying that the transfer using the POA was not effective.
Was a Will Created or Amended Under Duress, Fraud or Undue Influence?
If a Will or any of its amendments are discovered to have been created under duress, fraud or undue influence, then it may be invalidated in court. An probate litigation attorney is the best person to consult about the validity of a Will and if the Power of Attorney has the authority or not to make changes. The courts may also consider external evidence, like texts or emails, medical records, and bank account information as evidence of duress, fraud or undue influence that could affect a Will’s status.
What To Do If You Believe Someone Was Involved Inappropriately in Changing a Will?
If you have specific suspicions or proof that a Power of Attorney was or is involved in an inappropriate alteration or change to a Will, call us immediately at 602-443-4888. We will give you advice on the necessary steps to follow. It’s important to take action as soon as possible. Stolen money gets spent. Witnesses’ memories face. And there are statutes of limitations that may stop your ability to take legal action if you wait too long. If evidence exists that proves malicious intentions, intent to defraud or undue influence in the making of a Will, we need to act fast to preserve that evidence for use in court.
