Power of Attorney vs Executor - What’s the difference?

A power of attorney (or POA) is a legal document that names a personal representative to act on another person's behalf. A power of attorney must be created voluntarily while the principal is of sound mind and can designate either broad or narrow authority depending on the type of power of attorney. 

Types of power of attorney include:

• General Power of Attorney: Gives the agent broad powers to handle the principal's financial matters and legal affairs. 
• Limited Power of Attorney: Gives the attorney-in-fact authority to act in specified circumstances, such as selling a particular property, making healthcare decisions, making financial decisions, and more.
• Financial Power of Attorney: Authorizes the agent to handle financial affairs on a principal’s behalf, including paying bills, buying or selling real estate, managing bank and investment accounts, and more.
• Durable Power of Attorney: Remains in effect even if the principal becomes incapacitated. Without a durable power of attorney, a POA would expire when the principal becomes legally incompetent.
• Medical Power of Attorney: A medical power of attorney, sometimes called a healthcare power of attorney, enables the agent to make medical decisions in scenarios where the principal cannot make their own decisions.
• Springing Power of Attorney: A springing power of attorney becomes effective only when a specific event occurs, such as incapacitation or disability of the principal.

A common question is how long does a power of attorney last? The answer depends in part on what type of power of attorney the principal selects, and the critical distinction is between durable and non-durable POAs. 

This timeline shows when different powers of attorney are or are not valid relative to an injury or condition which incapacitates the principal.

As you can see, a regular (or non-durable) power of attorney expires when the principal becomes incapacitated, while a durable power of attorney remains valid. Meanwhile, a springing power of attorney becomes effective only upon a specific event or condition, often the principal's incapacitation.

But crucially, all powers of attorney expire when the principal dies. 

An executor is a person named in a last will and testament who is responsible for carrying out the terms of the will after the testator (the person who created the last will and testament) passes away. The executor plays a critical role in the probate process, so selecting the right executor is a crucial decision in the estate planning process.

The executor acts as the personal representative of the decedent's estate and oversees court proceedings as the estate goes through the probate process. Here are some of an executor’s key responsibilities:

• Identifying and inventorying the decedent's assets: An estate can include physical assets such as personal property, real estate, and financial accounts, as well as intangible assets such as digital assets or intellectual property.
• Paying the estate’s debts and expenses: The executor is responsible for paying any debts the estate may have, as well as expenses that the decedent had at the time of their passing (e.g. mortgages, credit card balances, or medical bills). Estate debts are paid from estate funds.
• Notifying beneficiaries: After all debts and expenses have been paid, the executor must notify the beneficiaries named in the will and oversee the distribution of the estate’s remaining assets according to the terms of the will.

Not every will names an executor, and not every person writes a will. If someone passes without writing a will or naming an executor, the probate court will typically appoint someone to serve as the estate administrator. (The terminology is different, and can also vary between states, but an estate administrator has basically the same responsibilities and serves the same role as an executor). 

The biggest difference between a power of attorney and an executor is that the agent under a POA has the authority to act on behalf of a principal while they are alive, and an executor acts on behalf of a person’s estate once they have passed. 

Once the principal dies, a POA expires, and no one can act on the principal's behalf. Instead, the focus shifts to probating their will and administering their estate. 

So the critical, bright-line distinction is whether a person is alive or has passed. 

Should executor and power of attorney be the same person?

First, a related question: can an executor and power of attorney be the same person? Yes, the same person could be named as an agent in a power of attorney and executor of a will. Indeed, both roles are positions of great trust and responsibility, and people often select a close loved one or family member when naming a person for either role. 

That said, someone could select different people to act as executor of their will and as agents under POA documents, and being named in one arrangement does not necessarily mean you have the authority of the other.

One advantage to naming the same person to be executor and agent under a power of attorney is that it increases the chances they will know your wishes and have a better understanding of your estate plan. And even if you do not name the same person for both roles, it can be helpful to speak with both and communicate whatever preferences you have about your estate plan.

Because while a power of attorney cannot change a will, they could do things that affect the eventual distribution of your estate, such as disposing of property you intended to leave to a spouse or child.

But whether or not you select the same person to serve as an agent under a POA and executor of your will, the most important thing is to choose people you trust, given the control they'll have over your legal and financial affairs.

So what are the key differences between power of attorney and executor of will? Both positions make important decisions to handle someone else's affairs, and the crucial distinction relates to whether that person is alive or has passed.

An agent named in a power of attorney could have either broad or narrow powers and can make legally binding decisions for a principal while they are alive. The executor's job, meanwhile, begins after a person has passed and entails administering that person's estate.

If you have questions, consider speaking with an estate planning attorney today. And if you do, here are the key questions to ask an estate planning attorney when you first meet.