HM Insights

Key differences between being an attorney and being an executor

Powers granted under a Power of Attorney can often be misunderstood when dealing with someone's estate after they pass away. Many people believe that if they have acted as an attorney for someone during their life, then they have the responsibility to deal with that person's affairs when they are no longer alive. This is not the case - who has this responsibility will be determined by whether or not a Will was executed prior to the individual passing away.

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Duties as an attorney

A Power of Attorney is a vital document for every individual. The granter can detail who they wish to make either (or both) welfare and financial decisions for them if they are no longer capable. An appointed attorney must always act in the best interests of the person they are acting on behalf of and should do so in the utmost good faith throughout their time in office. If appointed as a combined welfare and financial attorney, decisions will often surround whether the adult granter requires additional care and will mean speaking to financial institutions, such as banks. That being said, the scope of the powers and duties are wide and will encompass almost all of the decisions that are required to be made on behalf of another person. The key point to remember is that all of these duties relate to decisions that require to be made when the granter is alive, but unable to make decisions for themselves.

What do I do when the granter dies?

When the granter passes away, the Power of Attorney ceases to have effect. At this stage, the estate will be dealt with by whoever the deceased nominated as their executor in their Will. This may or may not be the same person that was appointed as their attorney in life. As it is possible to have different people appointed as attorney and executor, it is important to ensure you have the authority to deal with affairs at the appropriate time. The appropriate people having sight of the individual's Will at this stage is essential in ensuring unnecessary confusion is avoided.

If an individual did not leave a Will, a petition will be required to be lodged with the court to appoint an executor to deal with the person's estate. This will allow those due to benefit from the deceased's estate to be given the necessary authority to ingather any assets and distribute them in line with the rules of intestacy. This will often be the spouse or children of the deceased, but not necessarily those appointed as the person's attorney during their lifetime. An example of this would be a widowed man who did not speak to his only son and had his solicitor appointed as his attorney in life. If the widowed man did not leave a Will, his son would be entitled to his father's net estate and would, therefore, be the court's choice in appointing an executor.

We're here to help

It is important to ensure that you have both your Will and Power of Attorney in place. If you would like to do this, or require advice on acting as an attorney or executor, then our expert team are available to guide you through the process and answer any queries you have along the way.

Glasgow: 0141 227 9344                           Inverness & Highlands: 01463 795 035

Edinburgh: 0131 247 2500                         Shetland01595 695 583 

Elgin: 01343 542623

We have solicitors and offices across the country in Glasgow (next to Glasgow Central Station), Edinburgh (next to Haymarket Station), Inverness, Thurso, Elgin and Shetland - and working from home, ready to help in person or over the phone or on a zoom call. 

We can provide the assistance you need to protect your assets and your loved ones. This will allow you to put your mind at ease, knowing everything is in hand.

Useful Links

MAKING A WILL IN SCOTLAND

POWER OF ATTORNEY IN SCOTLAND