Legal Question in Wills and Trusts in North Carolina

Power of attorney and wills

My great grandfather resided in NC until his death last year. His wife had power of attorney over everything. What I would like to know is if a power of attorney could have changed his last will and testament without his consent? Thank You

Asked on 12/05/02, 7:22 pm

1 Answer from Attorneys

Tate Davis Davis Elder & Disability Law Services

Re: Power of attorney and wills

An "attorney-in-fact" acting under a durable power of attorney cannot create a new Will for someone. However, an attorney-in-fact could take actions that effectively change the estate plan for the principal. Generally this happens when the power of attorney permits gifting. In such a case, the principal's Will could, for instance, have called for a gift of $5,000 to each grandchild. If the atttorney-in-fact uses all of the estate assets, then obviously there won't be $5,000 to give each grandchild. Another example would be if the grandfather's will leaves a certain tract of property to a grandchild, but the attorney-in-fact sells that tract of property. Again, the tract is gone and the grandchild receives nothing.

In the event that such an action has taken place, it may be wise to see if the terms of the power of attorney actually authorized whatever action took place. If not, then an action for breach of fiduciary duty against the attorney-in-fact could be brought. One significant downside to such an action could be that the attorney-in-fact may not still own the asset in question. Another frequent downside may be if your grandfather received Medicaid or other public benefits. If so, then invalidating a transfer could effectively cause the asset to be subject to an estate recovery lien by the State.

Hope this helps. If you beleive that your grandfather's will was changed without his knowledge or his understanding, then you should probably seek professional advice from an attorney experienced in estate planning matters.

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Answered on 12/06/02, 7:28 pm

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