Executor of a Will vs Power of Attorney

When private client solicitors talk legal jargon, it can be hard to take in what they are saying. It is tempting to just let their legalese wash over you, but if you are making a new Will with a Will solicitor or debating whether to sign a Power of Attorney, you need to understand what your lawyer is saying to you.

In this blog, Will solicitor and legalese interpreter Chris Strogen explains the difference between the Executor of a Will and an Attorney in a Lasting Power of Attorney.

For expert Will and Lasting Power of Attorney advice call our team or complete our online enquiry form.

Will or Power of Attorney

Do you need a Will or a Lasting Power of Attorney? Our private client solicitors say that, ideally, you need both as the documents are different to one another and serve different purposes.

Many people don’t realise that they, and their relatives, need a Will and a Power of Attorney. They think that as they are an Attorney for a parent or grandparent, they don’t need to worry that their relative hasn’t made a Will. That’s not correct. The relative needs a Will and Power of Attorney.

Here is how Wills and Powers of Attorney work separately:

• A Lasting Power of Attorney appoints Attorneys to act for you while you are alive. There are two types of Power of Attorney. The Power of Attorney ends on the death of the person who signed the document granting Power of Attorney
• A Will sets out how you want your estate administered after your death and says who will receive your estate. An Executor is appointed in your Will to administer the estate and arrange the distribution of money to your beneficiaries in accordance with your Will. A Will has no force or legal effect until the testator or Will maker has died. Therefore, an Executor of a Will has no rights to sort out the Will maker’s financial affairs, even if the Will maker has lost the capacity to make their own financial decisions

A Will isn’t an alternative to a Lasting Power of Attorney and nor is a Power of Attorney akin to a Will. Both are necessary tools for an organised life.

What happens if there is no Power of Attorney?

Firstly, there are two types of Lasting Power of Attorney and they do different tasks. You can choose whether you want one or both types:

1. Health & Welfare Lasting Power of Attorney – this type of Lasting Power of Attorney allows nominated family or friends (called Attorneys) to make decisions about the donor’s medical treatment and care needs if the donor cannot make decisions as they don’t have the capacity to do so
2. Property and Financial Affairs Power of Attorney – this type of Lasting Power of Attorney allows Attorneys to manage the financial affairs of the person signing the LPA

A Health & Welfare Lasting Power of Attorney doesn’t come into effect unless the person who signed it has lost the capacity to make their own health or welfare decisions. A Property and Financial Affairs Power of Attorney can come into effect when signed if that is what is required. For example, if a donor wants a relative to handle their financial affairs or a property sale whilst they are living overseas.

If a person doesn’t have a Power of Attorney and a doctor assesses them as having lost capacity to make their own decisions then the fact that they are married or have a Will with a named Executor doesn’t give the spouse or the Executor the legal right to act on the person’s behalf even though they have their best interests at heart. Instead, there is a legal limbo situation until an application is made to the Court of Protection for a Deputy to be appointed. The Deputy may be the person’s spouse or Executor in the Will, but most financial institutions won’t act unless there is either a registered Lasting Power of Attorney or order from the Court of Protection.

Most private client solicitors recommend signing a Lasting Power of Attorney to cover for the hopefully unlikely event of temporarily or permanently losing capacity in an accident or through ill health, such as a stroke or dementia.

What happens if you don’t have a Will?

If a person dies without a valid Will, it is called dying intestate. The law says that any money and property pass under intestacy rules. The fact that the person had signed a Lasting Power of Attorney giving financial authority to an Attorney is irrelevant as the Power of Attorney ceases to have effect on death.

The intestacy rules are very rigid. They say how much of the estate goes to a surviving husband or wife or more distant relatives if there is no spouse or children. This can produce very unfair outcomes when cohabiting partners or stepchildren won’t be entitled to receive anything under the intestacy rules and an estranged cousin will inherit the entire estate unless the intestacy rules are challenged by a court application.

Should the Attorney and Executor be the same person?

A person can be an Attorney and an Executor of a Will but there is no requirement to appoint the same person.

Most people prefer to appoint two Attorneys in a Lasting Power of Attorney so there is consultation before important decisions are taken. Most Wills include two Executors as that is necessary if the deceased owned property or if there is a trust because there are minor children.

Choosing an Attorney and executor is very much a personal choice. Your choice may depend on the type of Lasting Power of Attorney you are signing. For example, your husband or wife is likely to be your preferred choice of Attorney for a Health & Welfare Lasting Power of Attorney but you may want to appoint your Will solicitor as the Executor of your Will as the solicitor will be handling the administration of your estate and ensuring that assets are sold and money distributed to your loved ones as quickly as possible.

Whoever you choose to be your Attorney or Executor it is important to check with them first to ensure they are willing to act as an Attorney or Executor or both. That’s because both roles come with legal responsibilities that won’t suit everyone.

Making a Power of Attorney or Will

Whether you are signing a Power of Attorney or a Will, both types of documents are all about forward thinking and planning. Our experienced Will and Lasting Power of Attorney solicitors can advise you on your choices to help you finalise a Power of Attorney and/or Will that reflects your wishes.

For expert Will and Lasting Power of Attorney advice call our team or complete our online enquiry form.