The difference between attorneys and executors
The difference between executors and attorneys is often misunderstood and I find clients can be confused about the difference between each role. The role of attorney and executor are similar to some extent but also very different. Both roles involve attending to somebody else’s financial affairs but in very different contexts and they involve appointment by different documents.
An executor is someone who is appointed in a will of a person and the appointment only comes into effect when the will maker has died. After the death of the will maker, an executor is responsible for ensuring that all of the estate assets are accounted for, debts and liabilities are settled and assets are looked after until they are distributed in accordance with the will maker’s will. When a will maker appoints someone as an executor in their will they are not giving the executor authority to manage the will maker’s affairs during their lifetime as the appointment can only ever come into effect when the will maker has passed away.
An attorney is someone who is allowed to act on behalf of someone else during their lifetime and there are a couple of ways in which they can be appointed. A person who appoints an attorney is often referred to as the “Donor.” An attorney can be appointed to deal with the Donor’s property and financial affairs and the Donor’s health and care but I will only be discussing attorneys in the context of property and financial affairs in this blog.
After October 2007, a Donor can appoint an attorney to manage their property and financial affairs by making a lasting power of attorney or a general power of attorney. A lasting power of attorney cannot be used until it is registered at the Office of the Public Guardian and a general power of attorney tends to be used if the Donor wants to appoint someone temporarily to manage their affairs due to a holiday or hospital stay etc.
A Donor can choose whether they want their attorneys to assist them as soon as the power of attorney is registered at the Office of the Public Guardian or the Donor can restrict the document to be used only when the Donor has lost mental capacity.
When the Donor dies, the power of attorney ceases to have effect and the attorney no longer has the authority to manage Donors property and financial affairs.
A person can also be appointed as an attorney for property and financial affairs by an enduring power of attorney that was signed and witnessed before October 2007. However, new enduring powers of attorney can no longer be made so I have not discussed them in detail in this blog.
You can appoint the same person to be your executor and your attorney if you feel it is appropriate but you will need two different documents to make the appointments.