Blurred lines? Attorneys and executors

It’s often wrongly assumed the roles of attorneys and executors are one and the same.

Sometimes, for example, a person who has held a Power of Attorney (POA) for years is under the impression this allows them to continue dealing with a person’s finances and assets — or they are automatically appointed as executor — when that person dies.

In reality, the difference between these two roles is straightforward, but significant.

What’s also significant is the impact of both these appointments on your life and your loved ones.

An executor will administer your will when you die — making sure your wishes are carried out whereas an attorney protects your interests while you’re still alive.

Power of Attorney

An attorney is someone, or more than one person, you would like to manage your finances and to make decisions about your welfare, if you become unable to do that yourself.

The POA is only active during your lifetime.

Upon death, whoever holds the POA no longer has the authority to manage your affairs.

In cases where a person doesn’t have the capacity to put a POA in place, the court can appoint a suitable guardian known as a Deputy. The authority of a Court appointed Deputy also terminates when you die.

Executor appointment

An executor’s appointment, on the other hand, only becomes valid after the person whose estate it is has died.

It is the executor’s duty to administer your will or, where there is no will, to wind up the estate in favour of the entitled beneficiaries. The executor cannot act during your lifetime.

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.

Specific and separate

The roles of attorney and executor consist of specific and separate responsibilities.

The attorney is bound to act in your best interests as the donor; the executor in the best interests of your beneficiaries.

Both are in a position of trust and often they can be the same people, which keeps things straightforward. But if not, it helps to be clear about where these distinct duties and obligations begin and end.

And crucially, the best approach is to consult a solicitor in order to make these arrangements in the first place. If you have any questions around the roles of attorneys and executors, contact us.

Ann-Marie Matthews is a solicitor in the private client team at Barker Gotelee, Ipswich Solicitors.

Ipswich Private Client Solicitors – for more information on our range of legal services, please call the team on 01473 611211 or email [email protected]