A common question I am asked is: What is the difference between having power of attorney and serving as an executor?.
The difference is literally life and death. The agent serving under your power of attorney only has power and authority to act during your lifetime. On the other hand, an executor is someone chosen by the probate court to handle your estate after you die. The executor only has power to act after your death.
While an agent’s responsibilities and an executor’s responsibilities are similar, their roles are required for opposite times. As soon as you die, your power of Clarksville estate planning attorney is void, and your agent’s authority is terminated. In the same way, your executor has no authority until the moment you die and he or she is appointed by the court to take over your accounts.
There are two important legal roles that you’ll probably come across when planning your future and taking care of your business: executor of an estate and power of attorney. A lot of people get these roles mixed up and wonder who is in charge. It’s not really about who has “more” power; it’s about when each role is in charge.
The Power Balance: It’s All About Timing
The simplest way to understand the difference in power between these two roles is:
- Power of Attorney: Has authority ONLY while you’re alive
- Executor: Has authority ONLY after you’ve passed away
“When their power starts to work is the main difference between an executor and an agent under power of attorney,” says the SmartAsset article. The power of these roles never overlaps, so neither can overrule the other during their assigned time frame.
Power of Attorney: Your Living Representative
A power of attorney (POA) is a legal document that lets someone (your “attorney-in-fact” or “agent”) do things for you while you’re still alive. If you’re sick, hurt, or just away from home and can’t take care of your own business, this person steps in.
When a POA Has Authority
According to the Notary in Clayton blog a POA might be needed in situations like
- When planning for potential incapacity
- For making healthcare decisions when you cannot
- During extended travel or living abroad
- For managing your business when you’re unavailable
- As an extra layer of legal protection
Types of Powers of Attorney
There are primarily two types of POA in Canada:
- General Power of Attorney: Valid only while you’re mentally capable
- Enduring/Continuing Power of Attorney: Remains valid even if you become mentally incapacitated
What a POA Can and Cannot Do
A power of attorney has significant authority but also clear limitations
✅ Can Do:
- Manage your financial affairs
- Handle your property matters
- Make healthcare decisions (with a medical POA)
- Pay your bills
- File your tax returns
❌ Cannot Do
- Change your will
- Override your will after death
- Alter life insurance beneficiaries
- Assign their authority to someone else
- Continue acting after your death
Executor: Your After-Death Representative
In your will, you name someone to take care of your estate after you die. Their job starts right when the POA’s authority ends, which is when you die.
The Executor’s Responsibilities
As detailed by LegalClarity, executors typically handle:
- Navigating the probate process (validating your will)
- Locating and inventorying your assets
- Notifying beneficiaries and creditors
- Paying outstanding debts and taxes
- Filing your final income tax return
- Distributing assets according to your will
- Setting up any trusts mentioned in your will
How Executors Get Their Authority
Unlike a POA, whose authority comes directly from you through a signed document, an executor’s power comes from:
- Being nominated in your will
- Being officially appointed by a court after your death
This court appointment, often called Letters Testamentary, gives the executor the legal power to handle your estate.
The Real Power Comparison
So who has more power? The answer isn’t straightforward because:
-
Timing Determines Authority: A POA has complete authority during your life, while an executor has complete authority after your death.
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Different Scopes: A POA typically manages ongoing affairs, while an executor wraps up your estate and distributes assets.
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Court Oversight: An executor typically operates under court supervision during probate, while a POA usually doesn’t have this level of oversight.
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Duration: A POA might serve for years or decades if you become incapacitated, while an executor’s role usually lasts months to a few years until the estate is settled.
This table helps clarify who has authority when:
| Scenario | Who Has Authority |
|---|---|
| While you’re alive and capable | You have all authority |
| While you’re alive but incapacitated | Your POA has authority |
| Moment of death | POA authority instantly ends |
| After death | Executor’s authority begins |
Can the Same Person Be Both POA and Executor?
Yes! According to all three sources, it’s quite common to appoint the same trusted person to both roles. This can be practical since they’ll already be familiar with your financial affairs. However, remember that these remain separate legal roles with different responsibilities and timing.
How to Choose the Right Person for Each Role
When selecting someone for these important positions, consider these factors:
For Power of Attorney:
- Trustworthiness
- Financial competence
- Availability to help when needed
- Understanding of your wishes
- Willingness to serve potentially for many years
For Executor:
- Organization skills and attention to detail
- Ability to handle complex financial matters
- Proximity (local is often better)
- Initiative and self-motivation
- Likelihood of outliving you
- Willingness to take on a potentially time-consuming role
My Personal Experience
I’ve worked with many clients who were confused about these roles. One gentleman I helped last year was convinced his brother’s POA gave him the right to change the will after his brother’s death. We had to carefully explain that the POA’s authority ended at death, and only the will (and therefore the executor) would determine what happened to the estate.
Final Thoughts: Planning for Both Scenarios
Having clear plans for both during-life incapacity and after-death estate management is crucial. Without a POA, your family might need to go through a lengthy court process to gain authority to manage your affairs if you become incapacitated. Without a will naming an executor, the court will appoint someone—possibly not the person you’d prefer—to handle your estate.
The smartest approach is to:
- Set up a durable power of attorney for financial matters
- Create a healthcare power of attorney for medical decisions
- Draft a will that names your chosen executor
- Review these documents every few years or after major life changes
Remember, neither role has inherently “more” power—they simply have different authority at different times. By understanding these distinctions, you can make informed decisions about who should fill these crucial roles in your life and beyond.
Need help setting up your POA or will? Consider consulting with an estate planning attorney or financial advisor who specializes in these matters. They can help ensure your documents are properly prepared and reflect your wishes.
How a Power of Attorney Works
At some point in your life, you will not be capable of taking care of your finances and your personal life. If you lose your mental or physical ability to do things for yourself, you will need someone to help you manage your money, pay your bills, do your taxes, and make decisions about your health care. Unfortunately, a loved one does not always have the legal authority to automatically assume your responsibilities. An individual who wants to help make these decisions must have the property authority to do so. This is where a power of attorney comes into play.
A power of attorney is a document that allows you to appoint someone to make healthcare, financial, and other important decisions for you during your life. Just remember that your agent only has the ability to act during your life, and generally cannot make decisions for you after your death.
Power of Attorney vs. Executor Explained || Estate Planning with Guy DiMartino
FAQ
Does power of attorney have more power than executor?
The agent serving under your power of attorney only has power and authority to act during your lifetime. Conversely, the executor is a person who is appointed by the probate court to close out your estate when you pass away. The executor only has power to act after your death.
How much power does an executor of a will have?
An executor holds significant, but not unlimited, power, acting as the deceased’s appointed agent to manage and distribute their estate according to the terms of the will and state laws. This power allows them to gather assets, pay debts and taxes, and sell property to fulfill the will’s instructions. But an executor can’t just decide what to do, go against the will, or do things without getting court permission for big decisions like selling a house.
Can an executor withdraw money from a deceased bank account?
No, an executor cannot immediately withdraw money from a deceased person’s bank account; they must first obtain legal authority from the court through a process called probate, which typically involves obtaining a Grant of Probate or Letters Testamentary, and present this to the bank along with the death certificate to gain access to the account and manage the estate.
Who is the best person to give power of attorney?
No matter if they are a family member, friend, or coworker, the “best” person for power of attorney is an honest, responsible, and skilled adult who is willing to do what’s best for you and follow your instructions.
What is the difference between a power of attorney and executor?
An executor takes care of your business after you die, while a power of attorney takes care of your business while you are still alive. Both roles are important for estate planning but they operate in different circumstances. If you’re ready to assign a Power of Attorney or Executor, CH Notary in Surrey, BC, can help.
What is the difference between a will and a power of attorney?
The main difference between power of attorney vs. executor of a will is that a power of attorney handles affairs while someone is alive, while an executor handles affairs after someone’s death. What is a power of attorney?
Why do you need a power of attorney & an executor?
Many people choose this option to streamline their estate plans. This allows one trusted individual legal authority to manage both their affairs and make important financial decisions during their lifetime and after their passing. Understanding the roles of a Power of Attorney and an Executor is essential for effective estate planning.
Can a power of attorney name an executor?
The appointment of an agent and an executor occurs through two separate legal documents. A Power of Attorney is created to manage lifetime affairs, while a Last Will and Testament is drafted to handle the distribution of an estate after death. You cannot use a will to appoint a Power of Attorney, nor can a POA document name an executor.
Can an executor act on behalf of a deceased person?
An executor has no power to act on behalf of the person while they are living. This court appointment gives the executor the legal power to handle the deceased’s estate. The source of their authority also differs. An agent’s power is granted directly by the principal through the Power of Attorney document.
Does a trust have more power than an executor?
It depends. If most of a decedent’s estate is put into a trust, then the trustee of the trust would have more power. If by power you mean the capacity to distribute the decedent’s estate. Generally, this tends to be the case if a person creates a trust and a will during their lifetime. What is the difference between power of attorney and executor?