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Can a Power of Attorney be Changed after being Signed?

by Jeffrey Asher, Estate Planning Expert
July 25, 2013

Question: Can I Change my Power of Attorney after I have Signed it?

Answer: Of course you can, provided that (a) you still have the legal capacity to enter into documents such as a Power of Attorney, (b) you do so in new document, and (c) the Power of Attorney is not irrevocable in some way.

A Power of Attorney is a legal document that appoints an individual or individuals (generally called the “agent” or “agents” or “attorney-in-fact” or “attorneys-in-fact”) to make financial decisions for the maker. A general Power of Attorney gives the agent the authority in the document right away upon the signing of the document. A springing Power of Attorney gives the agent the authority at some time in the future or upon the happening of a certain event. A durable Power of Attorney means the authority granted in the document survives the maker’s mental disability.

A person must have legal capacity to make a Power of Attorney. In New York, for example, this means that the maker must be 18 or older and be able to comprehend the nature and consequences of the act of making a Power of Attorney, the provisions contained within the Power of Attorney, and the authority granted within the Power of Attorney.

A Power of Attorney is intended to be a revocable grant of authority between the maker of the power of Attorney and the agent(s) named in the Power of Attorney. Generally, each state has its own rules regarding how a Power of Attorney is made and how it may be changed. Changing a Power of Attorney typically entails creating a new Power of Attorney and putting the changes you want in the new document. In fact, even if a state allows a Power of Attorney to be changed, modified, or amended, it is usually safer to simply make a new Power of Attorney and then revoke the prior one.  Revoking the prior Power of Attorney, rather than changing it, gives the maker a new opportunity to review the authority being granted in the document, as well as the language used in the document. However, signing a new Power of Attorney does not always automatically revoke a prior Power of Attorney. So, you must be careful to revoke the prior Power of Attorney when a new Power of Attorney is made.

A Power of Attorney is not normally irrevocable. It may become irrevocable when it is “coupled with an interest”. This means that the agent must have an interest in the subject matter of the power and not in the proceeds which will arise from the exercise of the power. For example, granting an agent a Power of Attorney over shares of stock, in which the agent has a financial interest, will make the Power of Attorney irrevocable because the agent’s financial interest would be jeopardized if the maker were able to terminate the power granted without the agent’s agreement. However, on the other hand, the authority given to a real estate broker to sell a house on commission cannot be irrevocable since the broker’s interest is not in the house itself but in the proceeds of the sale of the house.

So, yes, by all means, feel free to change your Power of Attorney, even after you have signed it. But, because the act of changing a Power of Attorney might require strict adherence to state law, please be sure to seek a qualified attorney to help you create a new Power of Attorney and revoke the old one.

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Jeffrey Asher is a prominent Trusts & Estates and Elder Law attorney in Westchester County and New York City. Mr. Asher concentrates primarily in the areas of Estate Planning, Probate and Estate Administration, Elder Law, Medicaid Planning, and Special Needs Planning. Mr. Asher provides comprehensive legal services, tailored to meet your specific needs.

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