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Understanding the difference between having POA and being an executor

| Jun 15, 2021 | Estate Administration And Probate |

Often, when people are developing their estate plan, they will give a family member, friend or someone else they trust the authority to act as their agent to handle their finances and their medical care if there comes a time when they’re unable to do so. This authority is given through power of attorney (POA) documents. It’s not uncommon for the same person to have POA over both finances and health care decisions.

Often, the type of POA given in California is a springing durable POA. It’s called that because it “springs” into effect when specified conditions are met – usually involving a person being mentally incapacitated or in a coma. It’s typically recommended that at least one doctor attests to a person’s incapacity before the POA can take effect. 

A POA becomes invalid when the person who gave it dies

Many people confuse being someone’s agent and having the authority to oversee their finances and medical care with being authorized to handle their estate after they die. However, their POA becomes invalid after the principal (the person who gave it to them) passes away. Legally, a person who is deceased can’t own anything, so there’s nothing to have POA over.

At that point, the person who was named the executor of the estate takes over. In addition to all of the other responsibilities of settling the estate, they may need to continue paying bills and dealing with other financial matters that were previously the agent’s responsibility.

The executor and the person with POA could well be the same person. In a small family with one adult child, that person may have all of the responsibilities during a parent’s incapacitation and after their death.

You can apply to be an executor if there’s no will that names one

If the deceased person had a will, the executor should be named there. If there’s no will, a probate court judge will need to appoint one. If you were given POA by a loved one, you can apply to be the estate executor.

Whatever the situation, it’s essential to understand the difference between having a POA and being an executor of an estate. The more you understand about the various responsibilities, the better able you’ll be to navigate the probate process. 

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