One of the many questions I get asked as a Newport Beach estate planning attorney 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). However, both Powers of Attorney cease to be in effect as soon as you pass away, 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 document that allows an 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 can conduct real estate, stock, and other financial transactions without the Principal needing to be present. However, as soon as the Principal dies, the 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. However, unlike the Power of Attorney, the Executor must be appointed by the Probate Court after a period where any challenges to the appointment, if any, are made. 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 still alive.
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 Newport Beach estate planning attorneys 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 – either Power of Attorney when the Principal is alive, or Executor when he or she has passed on.
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 (949) 260-1400 to set up a consultation.