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Tuesday, October 11, 2016

Acting under an enduring power of attorney doesn't allow you to change someone's will

If you're acting under an Enduring Power of Attorney, you may have been faced with a legal or financial situation that you're just not sure how to handle. It's not always easy to know where your authority ends. A reader recently wrote to me to clarify her authority to deal with her mother's will. Her question and my response are below:

"I am POA of my mother who is ill. Her will has estate shared equally among all children. One of my siblings has undischarged bankruptcy. As POA can I adjust the Wills so that her portion goes to her adult daughter instead? Our mother is non-verbal and paralyzed (stroke)."

I'm really glad that you asked this question before taking action, because far too many people think that the authority of an Enduring Power of Attorney extends beyond what it actually does.

No, you cannot adjust your mother's will. You simply have no legal right to do that. Nobody does except for your mother. Even if you were a court-appointed guardian or trustee you would not have that right.

The law has accepted for many years that a will is an expression of wishes, thoughts, goals, feelings, and knowledge that is unique to the testator (the person whose will it is). Nobody can ever step into a testator's shoes except for a judge when an application is brought to him or her regarding the will. Even then, the courts themselves sometimes struggle with having to change what a testator has said in a will. They do absolutely everything they can to stick to what the testator intended.

People acting under Enduring Powers of Attorney have made mistakes such as changing the beneficiary on a RRIF or life insurance policy. Some, such as yourself, do so with good intentions while others make self-serving changes because they think nobody will notice. Sometimes they get away with it and in other cases, they don't. There are potential civil and criminal sanctions when someone under a Power of Attorney takes these fraudulent steps.

You have, correctly, obtained your mother's will and made yourself familiar with it. This is an important step for someone acting under an Enduring Power of Attorney to take. If you are familiar with the will, you are less likely to accidentally disrupt an estate plan by selling or disposing of an asset for which the testator had plans in her will.

However, that is the extent of your involvement with the will. You cannot change it or adjust it in any way, even when it seems to you that it would help someone if you did. It's just not your call. It's not your money or your will. Changing the will would be fraudulent as you would have to pretend that your mother made the change in order for the will to be valid. When your mother passes away, your obligation is to hand over the will and account to the executor for what you've done with your mother's assets.


3 comments:

  1. Excellent question and Excellent response.

    ReplyDelete
  2. Hi Lynne, is it simply not possible even with a specific clause in the POA saying that the attorney has authority to change the Will?

    ReplyDelete

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