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One is Not the Other – A Named Attorney and An Appointed Executor

There is a common misconception among those not trained in the law that a person appointed under a Power of Attorney to take care of your financial affairs when you become incapable of doing so yourself (under what is most often called a Continuing Power of Attorney) continues to have authority to at least “tidy things up” once you die. This is not true. The law is clear. Authority to act under a Power of Attorney is terminated, ends, when the person who granted the Power of Attorney dies. Full stop, no qualifications or exceptions.

So who takes over? Your executor. And the same applies in the reverse to the power and authority of your executor. Your executor has no authority whatsoever to do anything on your behalf prior to your death – nothing. However, once you die the authority to manage and deal with your estate becomes vested in your executor – this includes, if there is any issue about them, decisions with respect to your funeral and burial arrangements. Things become more complicated if you happen to die without a Will, or with a Will that doesn’t name an executor, because in that case there will be a vacuum with respect to who can manage and deal with your estate until an application can be made to the Court to appoint someone to have that role.

So you haven’t taken care of ensuring there is someone to manage your affairs when needed before you die if you only have a Will, and you haven’t taken care of ensuring there is someone to manage the affairs of your estate once you die if you only have a Power of Attorney.

You need both. Make sure that you have both.

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