Can You Use Power Of Attorney (POA) To Revise Or Revoke A Will In Massachusetts?
Every adult in Massachusetts should have a comprehensive, well-rounded estate plan in place. A Will is a foundational document in any estate plan. Other documents—including a Durable Power of Attorney ( a “DPOA” or “POA”)—are also key parts of an estate plan. You may be wondering whether the person named in the DPOA, which is called an attorney-in-fact in Massachusetts, could ever revise or revoke your Will. The answer is a clear, “No”. In this article, our Boston estate planning attorney explains the key things to know about Powers of Attorney and Last Wills and Testament.
Any Competent Adult in Massachusetts Can Draft, Revise, or Revoke a Will in Massachusetts
In Massachusetts, any competent adult can draft, revise, or revoke a Will. A competent adult is legally defined as someone who is at least 18 years old and has the mental capacity to make decisions. The process of drafting or changing a Will should involve a clear, written declaration of the individual’s wishes regarding the distribution of their estate after death.
To revoke a Will, one can either execute a new Will that explicitly revokes the old one, or physically destroy the old Will with the intent to cancel it. As long as an adult is legally competent, they can alter their own Will at any time that they choose to do so.
In the event that an individual revokes an existing Will by signing a new Will, the new Will must be executed in compliance with the relevant statute, that is, (a) the document must be written (meaning typed or printed), (b) signed by the person making the Will (usually called the “testator” or “testatrix”, and (c) signed by two witnesses who were present to witness the execution of the document by the maker and who also witnessed each other sign the document. Each witness must sign the Will in the testator’s presence. It is recommended that the witnesses to the Will be “disinterested”, which means that they are not a beneficiary under the Will. While a Will is not invalid because the Will is signed by an interested witness, any gift to such a witness or their spouse is void.
A Power of Attorney Cannot Be Used to Revise or Revoke a Will
Contrary to a common misconception, a Power of Attorney (POA) cannot be used to revise or revoke a Will in Massachusetts. While the documentdoes confer broad authority to an agent to handle a person’s financial affairs, it can never be used to write, revise, or revoke a Will in the Commonwealth.
An Overview of What Can a Power of Attorney Be Used to Do in Massachusetts
While a Power of Attorney cannot be used to revise or revoke another person’s Will, a POA is still an important and powerful estate planning tool. In Massachusetts, a POA can be used for a wider variety of tasks related to the principal’s personal and financial affairs. Among other things, this can include:
- Managing bank accounts;
- Buying or selling real estate;
- Filing taxes; and
- Making healthcare decisions.
A principal can also limit the scope of the POA named in the document to specific tasks if they wish, creating what is often called a limited power of attorney. However, it is important to note that all actions taken under a POA must be in the best interest of the principal. The agent is legally obligated to act in good faith and within the bounds of the authority granted by the POA document.
Contact Our Boston, MA Estate Planning Attorneys Today for a Confidential Consultation
At Fisher Law LLC, our Massachusetts estate planning attorneys are a reliable and experienced advocate for clients. Have questions about POA or wills? We can help. Contact our estate planning lawyers today. With an office conveniently located in the center of Norwood, we provide estate planning representation throughout the surrounding communities in the Commonwealth, including in Norwood, Dedham, Westwood, Walpole, Sharon, Stoughton, and Canton.