The difference between an Executor and an Attorney

Confusion often arises in respect of the difference between the roles of executor and attorney, and why it is recommended to have both a Will and an Enduring Power of Attorney. A person acting as your attorney under your Power of Attorney is given the authority to handle your affairs while you are alive, whereas an executor will take care of the winding up of your estate once you pass away.

Powers of Attorney and the role of an Attorney

A Power of Attorney is one of the most powerful documents you can sign, as it enables the person/people you appoint as your attorney/s to make significant decisions on your behalf while you are still alive.

A General Power of Attorney will cease to operate once you lose the mental capacity to make decisions, whereas an Enduring Power of Attorney will ‘endure’ and continue to operate even after you have lost capacity.

If you lose the ability to make decisions and handle your own affairs (whether that be temporarily or permanently) your personal/health attorney can make personal and lifestyle decisions on your behalf and your financial attorney (if appointed under an Enduring Power of Attorney) can manage your financial affairs.

Often people will choose to appoint the same person/people in the role of both financial and personal/health attorney.  However, in some circumstances it may be more appropriate to appoint a different person/people to make your financial decisions to that which you appoint to make your personal/health decisions. At law, a personal/health attorney cannot begin to exercise their power to make decisions on your behalf until you lose the mental capacity to make your own decisions. You can, however, choose when you would like your financial attorney’s power to begin (for example, on signing the document or at some future date, such as when you lose capacity).

The person/people you appoint to act as your attorney are required to always act in your best interests in the management of your affairs. Regardless of this requirement, it is important that you appoint someone who you implicitly trust, given the significance of the decisions they will be making on your behalf. As noted above, upon loss of mental capacity the appointments made under an Enduring Power of Attorney will continue to operate and while you lack capacity you will be unable to make any changes to your attorney appointments.

When a person passes away their Power of Attorney is automatically revoked, and their estate will then be administered in accordance with the terms of their Will (if they have one) or the laws of intestacy (if they do not have a Will).

The role of an Executor under a Will

An executor is the person (or people) appointed under a Will to carry out the administration of a person’s estate following their death.

The responsibilities of an executor include (but are not limited to) the following:

• Making funeral arrangements and applying for a death certificate
• Applying for a Grant of Probate (where required)
• Collecting estate assets and closing the accounts of the deceased person
• Preserving and protecting the assets of the estate (including ensuring that estate assets remain insured)
• Paying any outstanding bills and debts of the estate from estate funds
• Lodging tax returns
• Defending the estate from legal challenges (if any)
• Distributing the assets in accordance with the Will

Your executor does not have the legal authority to make decisions on your behalf while you are alive, and likewise, your attorney does not have control over what happens to your estate once you pass away.

We can assist you

Please do not hesitate to contact one of our estate planning solicitors via the link below if you require assistance with preparing a Will and/or Power of Attorney.