Can a Power of Attorney Draft or Execute a Will for a Loved One with Diminished Capacity?
Detailed Answer
Many families wonder whether an appointed agent under a power of attorney can step in and draft or sign a loved one’s will when capacity becomes a concern. North Carolina law draws a clear line: an agent cannot create, amend, or execute a will on behalf of the principal. The principal must have the mental capacity required for making or changing a will at the time of its execution.
Power of Attorney and Its Limitations
Under the Uniform Power of Attorney Act (N.C.G.S. § 32C-1-102), a power of attorney grants an agent authority over financial and legal affairs specified in the document. Unless the power of attorney expressly states that it includes authority to create or revoke a will—and specifically references the controlling statute—agents have no power to handle wills or codicils. Even with that language, the law still requires the principal’s own testamentary capacity when the will is signed.
Testamentary Capacity Requirements
North Carolina’s Wills Act defines capacity for executing a will in N.C.G.S. § 31-2.1. To execute a valid will, the testator must understand (1) the nature of the testamentary act, (2) the extent of the property being disposed of, and (3) the natural beneficiaries of the estate. If someone lacks that understanding when signing, the will is invalid.
Key Considerations for Families
- Agents under a power of attorney cannot draft, modify, or execute wills for the principal.
- Even if the power of attorney grants will-related authority, the principal must have capacity at signing.
- Courts will invalidate wills signed without proper mental capacity, regardless of an agent’s involvement.
- Families should encourage loved ones to execute estate planning documents while capacity is clear.
- When capacity is in doubt, consider a medical evaluation or guardianship proceeding, rather than relying on a power of attorney for wills.
If your family faces questions about capacity, powers of attorney, or drafting a will under challenging circumstances, reach out for trusted guidance. At Pierce Law Group, our attorneys guide clients through North Carolina probate and estate planning. Contact us today by emailing intake@piercelaw.com or calling (919) 341-7055. Let us help you protect your loved one’s legacy and peace of mind.
