March 10

Power Of Attorney vs Personal Representative: Do You Know The Difference

If you are the holder of a Power of Attorney for someone else, it is really important to understand the limitations on your powers. Likewise, when writing your personal legal documents, you want to make sure you understand the authority you are giving to someone else.

So, let’s clear this up right away. When we talk about granting a Power of Attorney, we mean giving authority to someone you trust to make decisions on your behalf during your lifetime. The person who has been given a Power of Attorney is called your “attorney-in-fact.” Of course, this person does not have to be an attorney At Lawand can be any competent adult you choose. Your attorney-in-fact is simply your designated agent – and you can revoke their authority at any time. Most importantly, any power they had to act on your behalf ends at your death.

You can delegate authority to an agent for many types of decisions, but most commonly in Massachusetts, a Power of Attorney refers to a grant of financial authority. A properly drafted general Power of Attorney gives your attorney-in-fact immediate power to engage in many financial activities, including opening, withdrawing from, and closing bank accounts. If “durable”, your attorney-in-fact’s authority survives a decision by the court that  you are no longer able to handle your own financial affairs. Many banks will not recognize a Power of Attorney unless it is both immediately effective and durable.

A Personal Representative on the other hand, is the person responsible for settling your financial and personal affairs after you have died. In contrast with the attorney-in-fact who can only act during your lifetime, your Personal Representative has NO authority to act until after your death. Sometimes called the Executor or the Administrator, the Personal Representative is responsible for gathering the assets of your estate to make sure that your final expenses and debts are paid. The Personal Representative must also ensure that your property is distributed according to your wishes as expressed in your Last Will and Testament.

Oftentimes, you may want to name the same person as your attorney-in-fact and your personal representative.  But remember, these roles are distinct. Your attorney in fact can help you do things during your life that you need help with, and your personal representative “steps into your shoes” after you die to resolve your affairs.

If you have any questions about this or any other estate planning issue, we encourage you to seek out an attorney near you, or contact Erin Nobles, Esq. at enobles@noblesandsigman.com

This article is intended as general information and entertainment and is not to be considered legal advice. No attorney-client relationship has been created. © 2021 Erin Nobles, Esq.


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