Executors. Attorneys. What’s the difference?
Author: Louise Rance
People are often confused about the difference between executors and attorneys, so we’ve set out a simple explanation of each below. While both involve dealing with someone’s affairs, their roles only become effective at different times and through very different legal processes.
Put simply, one deals with life while the other deals with death. If you want to choose the same person to be your attorney and executor, you can but you will need two different documents to arrange this. The other thing to mention is that there’s no underestimating the importance of executors or attorneys.
Essentially, the role of an executor is to administer the estate of someone who has passed away. They will have been elected to carry out these tasks by the person who made the will and the executor’s role is only activated after that person has died. They’ll deal with ensuring that all the assets are accounted for, settle any debts and liabilities and make sure the estate is looked after until the assets are distributed to the beneficiaries in accordance with the deceased person’s will.
An attorney, on the other hand, is someone who’s appointed to look after the affairs of a person who’s lost mental capacity to look after themselves, but are still very much alive. Someone who appoints an attorney is called a ‘Donor’ and they can elect one or more people to look after their affairs for them.
Many people who are diagnosed with a degenerative illness, such as dementia, Alzheimer's or Parkinson’s tend put these types of arrangements in to place. The legal term for them is a lasting power of attorney and they can come in to force as soon as they’re registered or when the Donor loses mental capacity.
There are two kinds of a lasting power of attorney. One looks after the finances – paying bills, receiving income, overseeing property etc. – and the other ensures the Donor’s health and well-being are taken care of. This involves authorising medication, approving any care the Donor might need, even accepting or rejecting any life sustaining treatment.
In order for either lasting power of attorney to be activated, they have to be registered with the Office of the Public Guardian which can take around eight to 10 weeks. When the Donor dies, the attorney no longer has the authority to manage the Donor's affairs and the lasting power of attorney ceases to be effective.
If you’d like to talk to someone about making a will or a power of attorney, call us. We offer a free, no obligation consultation so you can understand what you need to think about and how the process works.