Attorney or Executor – what’s the difference?

As Legal Professionals we are often asked by our clients if they need an attorney or executor, and if an Attorney and an Executor are the same person. Many people think that if they have an Executor in the Will then this person can act as their Attorney and vice versa.

However, this is incorrect as an Attorney and an Executor are separate roles. It is crucial for you to understand the difference between the two roles in order for the correct actions to be put in place to protect your assets and more importantly your family’s future.

What is an Attorney?

An Attorney is a person or persons appointed by you to deal with your affairs when you make a Lasting Power of Attorney. Your Attorney(s) can only act for you during your lifetime and only when you are unable i.e. you have lost mental capacity or at your request when you do have capacity.

What is an Executor?

Am Executor is a person or persons appointed by you when you make a Will and to deal with your estate upon your death. Whereas an Attorney can only act for you while you are living, the role of an executor does not come into force until your death.

How can decisions be made?

The way decisions are made varies between the role of an Executor and the role of an Attorney.

An Attorney can only make decisions for you while you are living but when you don’t have capacity or a your direction if you do have capacity. Under the Mental Capacity Act 2005 your Attorney must be 100% sure that you cannot make the decision for yourself. For each decision your Attorney makes for you they must be for certain that you would not have been able to make this decision for yourself or carry out the task in question. Your Attorneys can also do as directed by you if you are unable to do so but still able for make the decision, for example, if you are unable to get to the bank due to illness you can direct your Attorney to go for you.

As an Executor’s role only comes into effect upon your death your Executors will not be able to ask you how you want to continue with the dealing of your assets or decisions. An Executor or Executors must follow the rules set out by the Administration of Estates Act 1925 and must act in accordance with the Will to carry out your wishes. If your Executor(s) feel they need assistance or feel they are unable to act as your Executor(s) then our team of experts at Chadwick Lawrence will be on hand  to assist your loved ones with their appointed role to ensure your wishes and carried through.

If you would like any further information regarding Lasting Powers of Attorney, Wills or Probate, please contact our team on 0800 015 0340 to arrange an initial free half hour appointment at any of our offices in Huddersfield, Halifax, Wakefield, Horbury, Leeds, Pudsey or Morley.