One of the biggest misconceptions when it comes to Executors and Power of Attorney is that lots of people think they’re the same thing. Many think that the person they appoint as their Executor will automatically also be their Power of Attorney, and that that person will be able to make decisions on your behalf if you’re unable to.
But this isn’t true at all.
Some also assume that their partner or spouse will automatically be their Power of Attorney or Executor should something happen to them. However, without official documentation, this also isn’t necessarily the case.
Save the assumptions for later. Let’s learn what the difference is between an Executor and Power of Attorney so you can make the right decision(s) for you and your family, should something happen to you.
What is an Executor?
We’ve gone into this topic in detail in this guide, but to keep things easy and convenient, we’ll drop a quick definition here:
An Executor is a person (or multiple people) who is (are) chosen to carry out the final wishes of someone after they pass away. The Executor is stipulated in the deceased’s Will and is typically a partner, spouse, lawyer, trustee or the person’s adult children.
The Executor of your Will has the sole obligation to ensure that your Will is carried out, and all assets divided correctly, after you have passed away. They can do things like:
- Make funeral arrangements
- Apply for probate (which determines if a Will is valid after the person has died)
- Defend the estate from legal challenges
What is a Power of Attorney?
As is always the case with important Will-related legal terms, we’ve written another guide on a Power of Attorney and your Will.
But, put simply, Power of Attorney refers to written authorisation allowing an individual to represent or act on behalf of another individual when they aren’t able to do so. Examples of when Power of Attorney is relevant is:
- Making medical decisions
- Deciding on where you live and how your money can be spent
- The support services you might need
If you haven’t appointed a Power of Attorney, you might not be able to choose who should make decisions for you if you no longer have the capacity to make decisions on your own. In this case, the courts in your state may be asked to appoint an administrator or guardian to help you.
What is the key difference between the two?
The main difference between the role of an Executor and an Attorney is when the two roles come into play. Someone who has the Power of Attorney will act while you’re alive – making decisions for you when you don’t have the capacity to – whereas an Executor acts after the person who appointed them has died.
Can Executor duties and Power of Attorney be given to the same person?
Of course they can! Chances are, you’re electing someone extremely responsible to manage each of these roles – and sometimes it can be challenging to find two people who you feel comfortable delegating the roles of Executor and Power of Attorney to. However, it’s worth noting that both roles come with a lot of responsibility, so it might be worth checking in with your chosen loved one(s) to ensure they’re comfortable acting on your behalf if you aren’t able (or aren’t around) to, especially if you’d like them to fulfil both roles.
If you’re yet to elect an Executor, now might be the perfect time to do so. Stipulating who you’d trust to make decisions for you should be included in your Will.