Differences between an Executor and Attorney

Differences between an Executor and an Attorney

It is a very common misconception that people believe once they have made a Will and appointed an Executor or Executors, that that Executor can act on their behalf if they lose mental capacity.

Similarly, people also believe that if they have been acting as someone’s Attorney during their lifetime, they can continue to act in the same way on that person’s death.

However, the reality is that an Executor appointed in a Will can only act on the death of the person who has made the Will (The Testator). The Will is of course a death instrument and can only be used on death.

An Attorney is appointed during the lifetime of the person (the Donee) making the Enduring or Lasting Powers of Attorney.  The Attorney can only act during the lifetime of the Donee.  If the Donee has made an Enduring Power of Attorney before October 2007 the Attorney(s) can register the document once the Donee is becoming or has become mentally incapable of managing their financial affairs and they will be able to make decisions on behalf of the Donee. If the Donee has made Lasting Powers of Attorney (which replaced EPAs in October 2007) for their Financial and Property matters the Donee themselves can register this straight away and the Attorney(s) can act as soon as it is registered with the Donee’s permission. If the Donee has also made a Health and Welfare Lasing Power of Attorney, this can be registered straight away, but the Attorney(s) cannot act until the Donee has lost their mental capacity.

The Attorney has the authority to act under these documents and make the necessary decisions until the death of the Donee. Upon the Donee’s death, the Enduring or Lasting Powers of Attorney are no longer valid and it is then that the Executor(s) in the Will must take over and administer the deceased’s estate. This could be the same person as the Attorney, but in many cases it is not.  If there is no Will, then an Administrator can be appointed by the Probate Registry.

For more information, contact our Private Client Department.