Some people mistakenly believe that once a Power of Attorney has been signed, the person who signed the Power of Attorney is protected against undue influence.
This is, quite simply, wrong.
Even though a person has signed a Power of Attorney, if the person remains competent, the person can revoke the Power of Attorney, or can sign a new Power of Attorney, giving powers to someone else.
Even if the person is no longer competent, if they are induced to sign what appears, on its face, to be a valid Power of Attorney, it is entirely likely that the new Power of Attorney will be accepted.
Similarly, even if a person is no longer competent to sign a Power of Attorney, they may still be competent to sign a Will or a Trust. The standard of competence to sign a Will or a Trust is simply that the person needs to know who the natural objects of his or her bounty are (i.e. know who his or her spouse and/or children are, etc), to know the extent of his or her estate in VERY general terms (possibly as general as “a whole bunch of money,”) and know that he or she is giving instructions for who is to receive these assets after the person dies.
It is entirely possible that a lawyer might determine that a person is no longer competent to sign a Power of Attorney, but might nonetheless help that person create a new Will or Trust because of this difference in the standard of competence necessary for these different documents.
The fact that a parent or other loved one has signed a Power of Attorney is NO protection against the parent or other loved one changing his or her mind (or having it changed through undue influence, etc).
Similarly, the fact that a parent or other loved one cannot easily access what is believed to be their most recent Will, Trust, and/or Power of Attorney, because this has been placed in a safe deposit box, for example, is no defense against the person simply signing (or being induced to sign) a new Will, Trust, Power of Attorney, or other document.
Steven A. Heinrich
Divorce & Custody
Wills, Guardians & Elder Law
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