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 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.
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.”
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.
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)
- American Bar Association: Estate Planning FAQs – Power of Attorney
- Superior Court of California Self Service Center: Power of Attorney
- Calhoun County Courts: Can the Holder of My Power of Attorney Change My Will?
- “Pittsburgh Post-Gazette”: Courting Trouble – The Document Granting ‘Power of Attorney’ Often Leads to Abuse
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.