Oct 2019
Whilst this may sound like the opening to a punchline, there is a serious side to this question. Do you know the difference between the duties of an attorney and the role of an executor.
If the answer is “no”, then you’re not alone. It’s very common and I find a number of clients will tend to ask me about the main differences at some point. In truth, they are similar, however, they remain relatively misunderstood because of the role variations.
Both involve attending to someone else’s financial affairs, but the documentation relating to each, represent different authorities. An executor is named in somebody’s will and the duties of which only apply at the point of the will maker’s death. Then, an executor is the person legally nominated to ensure all assets contained within the will are distributed in accordance with that will. It also includes making sure any assets are accounted for, debts are repaid and any other liabilities are settled.
This role differs from the attorney, as an executor does not have power to control any of the will-maker’s affairs during their lifetime. An attorney can.
In the role of attorney, an individual is nominated to act on behalf of someone else in the event that they are unable to do so themselves. This might be, for example, if someone becomes terminally ill or loses mental capacity.
An attorney can be nominated in a couple of ways. One is to allow the individual, or “Donor”, to express ways in which they wish to receive any medical treatment during later life care. If the Donor is unable to express those wishes for themselves, they can appoint an attorney to act on their behalf.
The other reason to nominate an attorney, and perhaps the most common, is to help look after any financial affairs and/or assets they have, such as property or valuables. From October 2007, a Donor can appoint an attorney through a Lasting Power of Attorney (LPA), which then registers the attorney at the Office of the Public Guardian. The Donor can choose to restrict this document to only be used at the point where they have lost mental capacity, to assist them.
After the Donor dies, the LPA is no longer effective, as the executor will then take over.
If you would like further information about drafting a will, or you’d like some advice about how to nominate an attorney or an executor, contact the Private Client team at Downs Solicitors to see how we can help.
