There are many things your power of attorney may do on your behalf. Depending on how the power of attorney document is drafted, your Agent under power of attorney can manage your finances, enter into legal contracts, manage your real and personal property, and much more.
Powers of attorney can even be written to allow your Agent to establish a revocable or irrevocable trust, to name beneficiaries on accounts and life insurance, and to establish right of survivorship in bank accounts and property. Thus, your Agent could have broad power to alter your estate plan or to establish an estate plan if you do not have one.
But what about a will? Can an Agent under power of attorney create or alter your will? The answer is no.
There are a few types of wills: oral or nuncupative wills, holographic or handwritten wills, and written and attested wills. Chapter 31 of the North Carolina General Statutes governs the creation of all types of wills recognized in NC. Each type of will mentioned above shares a statutory requirement for its creation. Specifically, they all must be spoken or signed by the testator. This requirement means that it is not sufficient for the Agent under POA to sign the will in lieu of the testator.
The more savvy among you may bring up the fact that Chapter 31 allows another individual to sign a will on behalf of the testator—this contemplates that the testator is physically unable to sign. However, this statutory provision requires that the individual sign the will on behalf of the testator in the testator’s presence and at her direction.
Furthermore, the person who signs the will at the testator’s direction need not be an Agent under POA. Thus, it is not the power of attorney that gives this person the ability to sign the will, it is the direction of the testator.
What about an amendment or codicil to the will. Whenever a codicil to a will is made, it must satisfy the same statutory requirements for execution as the original will. This means that the codicil must be signed by the testator or at their direction. Therefore, an Agent under power of attorney cannot unilaterally amend a will of another.
Powers of attorney can do many things; however, something that cannot be delegated is the creation or alteration of a will. If you have questions about powers of attorney or any other estate planning tool, McIntyre Elder Law a call at 704-259-7040.
Brenton S. Begley
Estate Planning & Elder Law Attorney