Aunt Gertrude’s power of attorney document grants her niece Milly (the attorney in fact) the power and authority to act for her as long as she (Aunt Gertrude) is still alive. Milly must use her best efforts to care for her Aunt Gertrude (the principal) and only take actions which benefit her. But the fact is the niece Millys of the world don’t always do what is best for their Aunt Gertrudes.
Could Milly, as the attorney in fact, write a will for Aunt Gertrude which leaves everything to herself? The standard wisdom is “no.” A resounding NO! The whole idea of appointing an attorney in fact is to have a person who is looking out for the best interests of the principal. There is some discussion within the past few years that the Pennsylvania statutes do not forbid the writing of a will by an attorney in fact. There are even some who suggest that the power of attorney authorizes such broad powers that the writing of a will is included.
The issue can be remedied easily – have the power of attorney document forbid the writing of a will by the attorney in fact. One sentence is all that is necessary.
This simple step does not stop Niece Milly from waiting until Aunt Gertrude is in a pliable state of mind and then taking her to a new attorney who Gertrude has never met before and having her sign a will that she does not fully understand. Nor does it stop the niece from any of the hundreds of other ways which seniors endure elder abuse, including financial abuse.
Taking the step of forbidding the attorney in fact to write a will for the principal, however, does close one more loophole.