Many people mistakenly believe that if they have appointed an Attorney under a Lasting Power of Attorney (LPA) then that person will also act as their Executor when they die, or vice versa.
This is not the case and it is therefore important to make sure you understand the difference between the two roles to enable you to put the correct measures in place to protect your own and your family’s future.
What is an Attorney?
An Attorney is someone who has been selected and appointed by you, when creating an LPA to make decisions about your finances and/or health and welfare when you are no longer able to yourself.
What is an Executor?
However, an Executor is the person appointed by you when creating a Will to carry out the provisions of the Will after your death.
Attorney vs Executor: How are they different?
An Attorney can act only up until death and an Executor can act only from the point of death onwards.
Another distinction between the role of Executors in a Will and Attorneys in an LPA is how a decision can be made. Under the Mental Capacity Act 2005, an Attorney must ensure that they have made every effort to allow you to make your own decisions before they decide on a course of action on your behalf.
This essentially means that for each financial decision, the Attorney must be satisfied that you cannot make the choice for yourself.
However, an Executor of a Will obviously cannot ask you how you wish to proceed as you will no longer be alive. An Executor therefore needs to act under the provisions of the Will and carry out the duties of an Executor as set out in the Administration of Estates Act 1925 and also the Trustees Act 2000. These duties consist of:
Collecting in and safeguarding the assets of the estate
Paying your debts and your liabilities
Distributing the estate to the beneficiaries in line with your Will
Note:
The two roles are completely separate from each other and do not overlap. They are appointed in different documents and do not have to be the same person or persons. It may therefore be beneficial for you to review your own position to ensure that you have the people you want appointed to the roles you want.
For further information or help with a Lasting Power of Attorney Solicitor and making a Will, or to discuss the appointment of your Attorneys and Executors, please contact a member of our Private Client team or email pc@goughs.co.uk and we will be more than happy to assist.
