who is power of attorney without a will

by Arthur Welch II 4 min read

Full Answer

What is a power of attorney (POA)?

A legal term, power of attorney grants an individual known as the agent the right to act for another person, referred to as the principal. Depending on the case, a principal may appoint an agent to make decisions about their finances, legal rights, healthcare needs, or all of the above.

What is the difference between power of attorney and executor?

The agent serving under your power of attorney only has power and authority to act during your lifetime. Conversely, the executor is a person who is appointed by the probate court to close out your estate when you pass away. The executor only has power to act after your death. Can a power of attorney act on behalf of an executor? Yes, they can be.

Can a power of attorney transfer the responsibility to another agent?

The POA cannot transfer the responsibility to another Agent at any time. The POA cannot make any legal or financial decisions after the death of the Principal, at which point the Executor of the Estate would take over.

Do I need a will if I have a power of attorney?

A will cannot do the same thing as a power of attorney and therefore even if you have a will it is a good idea to have a power of attorney. Similarly, a power of attorney cannot do the same thing as a will can, and thus, even if you have a power of attorney, you should also put a will in place too.


What is the difference between will and power of attorney?

A will expresses your wishes for after you die and has no legal effect before you die. A Power of Attorney only has effect before you die. People often make a will and Powers of Attorney at the same time. The person you appoint in a Power of Attorney does not have to be a lawyer.

What is the best power of attorney to have?

You can write a POA in two forms: general or limited. A general power of attorney allows the agent to make a wide range of decisions. This is your best option if you want to maximize the person's freedom to handle your assets and manage your care.

Does next of kin override power of attorney?

No. If you have made a Will, your executor(s) will be responsible for arranging your affairs according to your wishes. Your executor may appoint another person to act on their behalf.

Can a family member override a power of attorney?

If the agent is acting improperly, family members can file a petition in court challenging the agent. If the court finds the agent is not acting in the principal's best interest, the court can revoke the power of attorney and appoint a guardian.

Does a power of attorney need to be recorded in NY?

SHOULD MY NEW YORK DURABLE POWER OF ATTORNEY BE RECORDED AT THE COUNTY CLERK'S OFFICE? It is usually unnecessary to record the power of attorney. Only if a deed or other document is being recorded with the agent's signatures.

Does my power of attorney need to be registered?

In order for a Lasting Power of Attorney to be valid and be used by the Attorney it must be registered. With a Property and Affairs Lasting Power of Attorney, once it has been successfully registered it can be used straight away.

Do you need a lawyer for power of attorney in New York?

In New York (and every other state), you don't need to hire a lawyer to create your power of attorney. You can do it yourself, saving you time and money. As long as you follow New York's requirements, any POA you create is just as legal as one drafted by a lawyer.

Does a POA need to be notarized in New York?

New York's new POA law requires that the principal's signature be notarized in addition to the POA being signed with two witnesses present (note that the notary can be one of your witnesses). New York's old power of attorney law also required POAs to be notarized, but didn't require them to be witnessed.

Do I Need To Get Both a Will and a Power of Attorney?

Wondering if having one of these two documents is enough? Since they deal with different affairs, it would be wise to have both of them.

What is the difference between a power of attorney and a will?

Although both documents are used to appoint other people to deal with your affairs, they differ. The power of attorney is used to deal with your financial and personal affairs, while the will is used mainly to appoint the executors to distribute your belongings to your heirs.

How to get a power of attorney?

The power of attorney comes with several benefits. It allows you to: 1 Choose the person you want to handle your affairs 2 Shape the agreement to your liking 3 Decide on the exact powers you want to transfer 4 Avoid the need for a conservatorship (conservatorship is a process where the court appoints a certain individual to be the principal’s guardian)

What is conservatorship in court?

Avoid the need for a conservatorship (conservatorship is a process where the court appoints a certain individual to be the principal’s guardian)

What is a POA?

The common types of a will are: A power of attorney (POA) is a legal document you use to give a trusted agent the authority to make legal, financial, health, and other decisions on your behalf. The exact powers you give to the agent depend on the POA type in question.

How long is a power of attorney valid?

The power of attorney is valid for as long you are alive, while the will comes into effect after you pass away.

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Why is Power of Attorney Important?

My Mom was their Power of Attorney, so she could take care of any legal or financial matters that arose while they were out of Canada. I remember her taking me to the bank with her when I was little, to do Grandpa and Grandma’s banking. What she had was specifically referred to as Limited Power of Attorney. This is essential for people who travel for work or pleasure, especially if you get injured in another country. You can also very specifically limit what actions your POA is or is not allowed to take, such as bank deposits only.

What Happens if I Don’t Have a Power of Attorney Established?

If you die or become cognitively impaired and do not have Enduring Power of Attorney, someone actually has to apply to the Supreme Court of Canada to be name to the committee to deal with your estate. Can you imagine your family members, already grieving or struggling with your illness, having to go through all those legal hoops? That’s why it’s best to deal with the paperwork now and save everyone the stress and hassle later. They’ll also save on the legal fees with having to go to Supreme Court! Your family will thank you.

What Do I Do Now?

Either a lawyer or a notary can assist you in drafting your Power of Attorney document. Furthermore, due to COVID-19, there is currently a ministerial order in place to allow for these signatures to happen electronically, so there’s no better time to get this done! To make sure the legal language used is correct and can be upheld in a court of law, please consult your trusted lawyer or notary, or contact me to put you in touch with one of my trusted colleagues. If you have questions about any of the content here, or you’re thinking about drafting up your living will and want to talk, feel free to call or email me.