Continuing our series of articles from Ann-Marie, Associate Solicitor at Barker Gotelee, this is a question we think lots of people get a bit confused about. Well, no more! Read on to get your facts straight.
The difference between executors and attorneys is often misunderstood. It’s not unusual for clients to be confused about the difference. Both roles involve the administration and dealing with someone else’s financial affairs, so there are some similarities. But they operate in very different contexts and they involve initial appointment by different documents.
What is an executor?
An executor is someone who is appointed under the terms of a person’s Will. The appointment only comes into effect when the person who has made the Will has died.
After the death, 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 terms set out under the Will. An executor has no authority to manage the affairs of the person making the Will whilst they are still alive.
What is an attorney?
An attorney is someone who is appointed to act on behalf of someone during their lifetime. 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. Both roles are extremely important and wide ranging in powers and duties. They are instigated when a Donor completes a document called a Lasting Power of Attorney.
A lasting power of attorney cannot be used until it has been registered with the Office of the Public Guardian. If a person wishes to appoint someone on a temporary basis to manage their affairs, they can do this by using a slightly different document called a general power of attorney.
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 (in the case of a financial lasting power of attorney). Alternatively, the Donor can restrict the document to be used only when the Donor has lost mental capacity (in the case of both the financial and health lasting power of attorney).
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. This is when the responsibility will pass to the executor.
Now you know what each person does, it’s time to make sure you’ve got your will sorted so that you’ve nominated an executor you trust. And if you’d like to know more about lasting powers of attorney, you can reach Ann-Marie on 01473 350574 or at [email protected]