After talking to clients about the planning of their affairs, we at Walker Foster discovered a common misunderstanding over the difference between an executor and an attorney.
While both are responsible for managing someone else’s affairs, they serve different purposes at different times.
Understanding these distinctions is important so that you can appoint the right people for the role.
In this blog post, Walker Foster’s Wills & Probate Executive Cay Schofield defines the differences between the two and the responsibilities that each role has.
While both executors and attorneys handle a person’s (the ‘donor’s’) affairs, the fundamental difference between the two are:
The responsibilities of each of these two roles do not overlap, as an attorney’s authority ends at the donor’s death, while an executor’s authority begins at the donor’s death.
An executor is a person named in a will to administer the estate of someone who has passed away. An executor can be a family member, friend or a professional such as a solicitor. They have a legal duty to act in the best interests of the estate and its beneficiaries.
An attorney is someone appointed under a Power of Attorney (POA) to make decisions on behalf of a donor who is still alive but is incapacitated or no longer able to make decisions for themselves. An attorney can also be a family member, friend or a professional such as a solicitor. As the donor’s attorney, they have a legal duty to act in the best interests of the donor and make choices that reflect their wishes for their estate and health.
Yes, the same person can be appointed as both as an attorney - administering your estate should you be incapable of doing so - and also an executor, managing your estate after your death.
If you would like to discuss how Walker Foster Solicitors can help you set up a POA or plan who will manage your estate in the event of your death, please speak to our friendly, knowledgeable Wills and Trusts team. You can also use our online contact form to get in touch.
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The requirement to be physically present is absolute. A signature cannot be witnessed online via a video call like Zoom or FaceTime, or even through a window.
A power of attorney does not continue after death. When the donor dies, the authority granted to the attorney ends immediately. There is no grace period, and the attorney stops acting from the point of the donor’s death.
If you are thinking about ending a power of attorney, one of the first questions is often about cost. The answer will depend on factors such as your circumstances and whether you need support with the process.
There is no single statutory definition for executor misconduct in England and Wales. Instead, it is understood as a breach of the fiduciary duty owed to the estate.
