What is the difference between being an executor and having power of attorney? This is a common question we are regularly asked by clients who are contemplating managing their estates. It’s often wrongly assumed the roles of attorney and executor are one and the same.
In reality, the difference between these two roles is straightforward but significant. It’s the difference between life and death.
An executor administers your Will when you die — making sure your wishes are carried out; an attorney protects your interests while you’re still alive.
The executor is appointed in the deceased’s Last Will and Testament and bears the responsibility of administering their estate, including clearing any debts and distributing assets in accordance with their requests.
If you have been appointed as Power of Attorney or executor, it is highly recommended you seek professional advice from a solicitor, as these roles may be complicated and expose you to a high level of legal and personal responsibility which you may not be aware of.
What is a Power of Attorney?
An attorney is an individual or individuals who you appoint to manage your financial and legal affairs and make decisions about your welfare if you become unable to do that yourself.
A Power of Attorney (POA) is a legal document that authorises someone to make personal, financial, legal and medical decisions for you in the event you lose capacity.
A Power of Attorney is only active during your lifetime. It ceases to operate upon your passing.
At that point, whoever holds the POA no longer has the authority to manage your financial or property affairs. In fact, if an attorney has transacted with the estate after the granter’s death, they may be asked to account for this.
It is important to plan for the scenario that you may at some stage in life be unable to manage your personal or financial obligations. In the event you lose capacity, you will need someone to help you pay your bills, manage your assets and financial affairs. It is also important to understand that your loved ones may not automatically have the legal authority to do this on your behalf. It is essential that you have the documents in place to ensure your affairs are properly handled by someone you trust. This is where a properly prepared power of attorney can assist.
What is the Role of an Executor?
An executor only has the power to act for you after your death. The executor is nominated in your Will. Their role is to manage your estate after your death.
It is not enough to tell someone that you want them to be your executor: this can only be done either through a valid Will or, if there is no Will, those entitled to the estate can appoint an executor through the court.
Unlike attorneys, an executor may not know they have been appointed as a Will is a private document and only comes into force after the death of the person who made it.
As such, they may only know about the appointment while you’re alive if you discuss it with them directly.
Executors are responsible for resolving any claims against your estate and ensuring the assets are distributed to the beneficiaries under the Will. In cases where there are multiple beneficiaries under a Will, it is paramount you elect an executor who is trustworthy and will act in the best interest of the beneficiaries.
As you can see, there is an important distinction between a Power of Attorney and an executor. During your lifetime, an executor has no authority to make decisions on your behalf – this is the role of a Power of Attorney.
It is essential to appoint a trustworthy Power of Attorney and executor in your Will, as these individuals are entrusted with the power to make important decisions on your behalf. It is highly recommended you consult a solicitor when creating these documents.
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