Choosing an Executor and Power of Attorney

Choosing an Executor and Power of Attorney

When considering your estate plan, it is important to note that “power of attorney” and “executor” are two separate roles. A person named as “attorney” in a Power of Attorney document is responsible for a person’s affairs when they are living but unable to make decisions due to unavailability, illness or accident. Once the person dies, the role of power of attorney no longer exists and the “executor” of a person’s Last Will and Testament is then responsible for managing, probating and disbursing the estate of the deceased person. However, the same person can be named as both power of attorney and executor, if you wish.

For both your attorney and executor, as well as any alternate appointees, the selection of a competent and trustworthy person is very important. It is wise to appoint someone who has administrative experience, is organized, and has the utmost integrity and honesty to serve in either of these two roles.

Power of Attorney
The role of an attorney pursuant to a Power of Attorney document is to step into your shoes and handle your financial and legal affairs if you are unable to do so yourself. This includes, but is not limited to, dealing with your bank, investments, insurance company, property title and mortgage and any ongoing litigation matters. Essentially, the attorney can do anything you could do yourself if you were able. A Power of Attorney document does not give your attorney the authority to make healthcare decisions on your behalf – it is strictly related to your personal finances, business and legal affairs.

The attorney must also keep a complete record of all expenses and amounts paid or collected on your behalf when handling your affairs and provide an accounting if requested to do so. The attorney’s authority pursuant to the Power of Attorney ends with your death, but the accounting obligations survive and the attorney may have to provide an accounting to your estate to ensure all of your assets have been dealt with appropriately.

The role of the executor pursuant to your Last Will and Testament is to take charge upon your death and protect your estate assets, account for all of your estate’s legal, financial and real property, pay your outstanding bills and report your assets and liabilities to the probate court. In most cases, this is done with the assistance of accountants and lawyers. Once approved by the probate court, the executor is responsible for distributing your estate assets to your named beneficiaries as set out in your Last Will in Testament.

Expenses and Fees
Any out of pocket expenses of an attorney and an executor are to be reimbursed to them, and an executor may also claim a small fee for their services. However, there is a great deal of work and responsibility involved in both of these roles and the remuneration is often not equal to the work done. It is a role that should not be conferred or taken on lightly.

A lawyer can help you to understand the wide range of issues that arise with the preparation of estate planning documents. If you would like advice regarding the preparation or amendment of these important legal documents or for more information regarding such matters please contact Chahal Priddle LLP at 250-372-3233 to set up an appointment today.