Many people mistakenly believe that an attorney under an LPA automatically becomes the executor of their estate after their death. This is wrong. Understanding these key differences between attorneys and executors is crucial for effective estate planning and avoiding confusion.
In England & Wales, an attorney (for instance, acting under a Lasting Power of Attorney or ‘LPA’) can help you with your finances while you have capacity and, with an LPA, can also take financial decisions for you if you lose the capacity to make those decisions yourself. In contrast, an executor administers your estate after you die.
Under an LPA, an attorney’s primary responsibility is to follow your instructions while you have capacity and, should you lose capacity, then to act in your best interests, including following any guidance as set out in the LPA itself. In contrast, an executor distributes your assets according to your wishes outlined in your will.
Attorney Under an LPA
A Lasting Power of Attorney (LPA) is a legal document that lets you appoint someone (or more than one person) you trust (the attorney or agent) to make decisions on your behalf. There are two types of LPA:
- Property and Financial LPA: Grants your attorney the authority to manage your finances, property, and bills while you have capacity and after you lose capacity.
- Health and Welfare LPA: Allows your attorney to make healthcare decisions for you if you lose capacity to take those decisions yourself.
An attorney’s primary responsibility under an LPA is to act in your best interests when you lack the capacity to make decisions yourself. This could involve:
- Managing bank accounts
- Paying bills
- Selling property
- Making medical decisions (with a Health and Welfare LPA)
Importantly, the attorney’s authority ceases upon your death. Any transactions made by the attorney after your death may need to be accounted for, as their legal authority ends at that point. It’s also worth noting that attorneys are notified of their appointment during the LPA registration process and must formally agree to act.
Executor Named in a Will
A will is a legal document outlining your wishes for how your assets should be distributed after your death. The executor is the person (or persons) that you name in your will to handle your estate. The executor’s role begins after your death.
Key responsibilities of an executor include:
- Registering the death and arranging the funeral
- Locating and securing your assets (e.g., property, bank accounts)
- Paying off your debts and taxes
- Applying for probate (legal permission from the court to administer your estate)
- Distributing your remaining assets to your beneficiaries as outlined in your will
- Managing the sale of property if required
Without obtaining a grant of probate, executors may not be able legally access or manage certain estate assets such as withdrawing funds. A grant of probate is normally needed to sell property, or transfer ownership.
Executors may not know they have been appointed until after the testator’s death, as wills are private documents that only come into effect upon death. Discussing your plans with your chosen executor during your lifetime can help ensure they are prepared for the role.
Two Key Differences Between an Attorney and an Executor
1. Timing
The timing of when an attorney and an executor assume their responsibilities is one of the most significant differences between the two roles:
- Attorney: The attorney’s authority starts when the LPA document is registered with the Office of the Public Guardian and becomes effective either immediately or after you lose mental capacity. Their authority ends upon your death.
- Executor: The executor’s authority starts only after your death.
2. Responsibilities
The nature of the responsibilities undertaken by an attorney and an executor also differs significantly:
- Attorney: The attorney manages your affairs while you’re alive but unable to do so yourself. This includes handling financial matters such as managing bank accounts, paying bills, and making investment decisions. In the case of a Health and Welfare LPA, they make decisions about your medical care and living arrangements.
- Executor: The executor carries out your wishes as outlined in your will after your death. This involves gathering and securing your assets, paying any debts and taxes, and distributing the remaining assets to your beneficiaries. They may also need to manage the sale of property and deal with any disputes among beneficiaries.
Choosing the Right Person
Selecting the right individuals for these roles is critical:
- Attorney: Choose someone trustworthy, reliable, and capable of handling financial or health decisions under pressure.
- Executor: Choose someone organised, detail-oriented, and able to manage potentially complex estate matters.
Can an Attorney also be an Executor?
Yes, in the UK, an attorney appointed in your LPA can also be the executor named in your Will. There’s no legal restriction preventing the same person from holding both roles.
It might be a good idea to have the same trusted person handle both aspects of your affairs as it can streamline the process, especially if they’re already familiar with your wishes and finances. Also, as your attorney already has experience managing your affairs, this can be a smooth transition to handling your estate after your death. Nevertheless, it’s worth considering that both roles can be demanding, so consider if the chosen individual has the time and capacity to handle both effectively.
Legal and Professional Assistance
While family members and friends often serve as attorneys and executors, you might also consider appointing professionals such as solicitors or financial advisors. This is particularly beneficial if your estate is complex or involves:
- Multiple properties
- Business interests
- International assets
Professional executors offer expertise and impartiality, ensuring your estate is managed according to the law and your wishes. For attorneys, professional appointments can provide peace of mind, particularly when there are challenging or sensitive decisions to be made.
Keeping Documents Updated
Regularly review and update both your LPA and your will to reflect changes in your circumstances or relationships. This can involve:
- Creating a new will or adding a codicil
- Updating your LPA to appoint a different attorney if necessary
Keeping these documents up to date ensures your estate planning remains aligned with your current wishes. Planning ahead can also alleviate stress for loved ones, ensuring they can manage your affairs appropriately during your lifetime and after your death. This often raises the question: do I need an LPA if I have a Will? While both documents are essential, they serve entirely different purposes and should be part of a comprehensive estate plan.
Contact an Specialist Probate Solicitor
If you would like any help or advice on any issues relating to Probate, Lasting Powers of Attorney or making a Will, please do not hesitate to contact one of experienced Probate Solicitors or Power of Attorney Solicitors. Alternatively, please get in touch on 020 8492 2290 to arrange a consultation.
