One of the many questions Trumbull estate planning lawyers get asked is how long is a Power of Attorney in effect. The answer to that question is complicated in the beginning, but very simple at the end: depending on what type of Power of Attorney you have, it may be in effect as soon as it’s signed (Durable Power of Attorney) or only when it’s determined that you can no longer handle your own financial affairs (Springing Power of Attorney), or may be in effect when you sign the document, but lose its power when you are determined to be incapacitated (Power of Attorney). However, all Powers of Attorney cease to be in effect as soon as you pass away, or if you revoke them in writing, which leads to the next question: What is the difference between a Power of Attorney and an Executor?
Power of Attorney
As noted earlier, a Power of Attorney is a legal document that allows an individual known as the Agent to conduct financial affairs for the Principal in cases where the Principal is incapacitated or otherwise unable to handle their financial affairs for any reason. The Agent named as Power of Attorney has the power to conduct real estate transactions, manage investments, and other financial transactions without the Principal needing to be present. However, as soon as the Principal dies, the Agent acting under a Power of Attorney ceases to have any authority over the Principal’s financial affairs. That is the point where the Executor takes over.
The Executor of an estate is named in the Last Will and Testament and has control over all the assets held in the estate. Unlike an agent acting under a Power of Attorney, the Executor must be appointed by the Probate Court to have power to act. Just as the Power of Attorney does not have the ability to act when the Principal is deceased, the Executor cannot act while they are living.
All this being said, it does not mean that one person cannot serve as Power of Attorney and also as the Executor – in fact, most of the clients seen by Trumbull estate planning lawyers have the same person acting as their Power of Attorney and Executor. The difference lies in the title of the person and role they are serving at the time, and the ethical and legal duties the person has under each role.
If you have any questions regarding the roles of a Power of Attorney and an Executor of an Estate, or if you’re starting to think about making an estate plan, please contact us at (203) 877-7511 to set up a consultation.