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What is the Difference Between a Power of Attorney and Executor?

There is often a lot of confusion about a power of attorney and an executorship (now called a Personal Representative in Massachusetts). In fact, both legal entities are similar. They both prescribe duties that a person handle for someone who cannot do for themselves. These agents become the rational mind of this individual, doing things in that person’s best interest. Nevertheless, there are obviously differences that must be noted. It would be a mistake for someone to appoint a power attorney when they really need an executor, or vice-versa.

To help alleviate any lasting questions out there about these two important legal roles, here is an explanation of the differences between a power of attorney and an executor.

Roles

One crucial difference is in the duties. Each of these persons acts on the behalf of another party. However, a power of attorney, known as an attorney in fact,  might be relegated to only specific areas of life. For example, a person could designate a power of attorney to oversee maintenance of their house or car. Likewise, it might be necessary to have an attorney in fact to protect financial assets while away on vacation.

Since the specific tasks must be spelled out, attorneys in fact assume the position at the time of signing. The law accepts the expectations laid out in the grant. The person with the power of attorney holds these powers until the assignor dies or the powers revoked.

In contrast, an executor, by nature, is a general grant of all assuming authority. This person assumes all the decision-making of the assignee but only upon the assignee’s death.

Time of Appointment and Assuming Authority

As mentioned, a power of attorney proclamation becomes effective at the time of signing and stays in effect until the death of the grantor or their power becomes revoked. Thus, upon death, the law looks at the will to decide how to proceed and who should act as the executor.

If a will contains the proper instructions, then the court notifies the one mentioned that he or she will act as an executor of the estate, or the total property, of the deceased. Again, an executorship is a general grant of authority, that supersedes authorities given during life or expectations of certain family members. When the judge rules a will valid, the executor assumes total autonomy, which surviving wives, children and parents must respect.

Revocation of Authority

As with most legal rights, there are occasions when a power of attorney or executorship comes to an end, or other rights transcend them. As stated, courts invalidate a power of attorney upon the grantor’s passing. These duties are for the living only.

Executorships end primarily when put through a successful legal challenge. Remember, executors control estates of the dead, meaning the person can no longer change the will. Instead, it must be some relation to the deceased, usually a family member, who poses such a challenge.

The usual reason for requesting a change of executorship is in cases when the person granted such authority fails to act in the best interest of the estate. A judge listens to the evidence presented against the standing executor and reassigns one if necessary. Nevertheless, it must be noted that judges do not take such accusations lightly and that gross misconduct must be present to end an executorship.

Contact an Attorney For Advice

As shown here, these two legal guardianships are closely related. Therefore, it behooves anyone planning to assign another person power over their estates, either while living or after death, to speak with a qualified attorney for advice before proceeding. Doing so can prevent making the mistake of choosing the wrong grant of authority.

Countless families find themselves in disputes with persons possessing legal rights in error when it all can be avoided by retaining competent legal counsel from the start.