What’s the difference between a power of attorney and an executor?

One has authority while you're alive and the other only after you die.

Elissa

By

Elissa Suh

Elissa Suh

Personal Finance Editor

Elissa Suh is a senior editor of estate planning at Policygenius in New York City. She has researched and written extensively about wills, trusts, and personal finance since 2019, with an eye towards making difficult (and at times gloomy) topics easy to understand for readers. Her articles and data stories has been cited by the likes of MarketWatch, CNBC, PBS, Inverse, The Philadelphia Inquirer, and more.

Published June 14, 2021|3 min read

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An executor and a person with power of attorney both play an important part in estate planning, and you can even choose the same person to serve in both roles — but their duties will be distinct. The executor settles financial affairs and oversees the probate process after you die, while someone who holds power of attorney can make financial and medical decisions on your behalf during your lifetime, which can extend to when you’re incapacitated. 

Executors are fiduciaries of your estate, and a person with power of attorney similarly has a legal obligation to act in your best interests when it comes to specific matters you’ve designated. The roles of executor and attorney-in-fact are also established in different ways: through a last will and testament and a power of attorney (POA) document, respectively.

Key Takeaways

  • Attorneys-in-fact and executors are both fiduciaries that represent you or your estate

  • You can appoint the same person to serve both roles, but you’ll need to do so with different legal documents

  • Executors are customarily paid for their duties, but people with power of attorney are not

How power of attorney works

With a power of attorney (POA) you can grant someone the authority to make decisions on your behalf. The person you choose is called your agent or attorney-in-fact, and what they’re allowed to do depends on what powers you give them. For example, you can create a financial power of attorney to let the agent make financial decisions when you're away on business or even give them the legal authority to buy real estate. You can also get a medical power of attorney to authorize someone to make medical decisions on your behalf. (A medical POA is known as a health care proxy and it’s just one type of advance directive you might consider including in your estate plan. Learn more about the difference between a power of attorney and a living will, another type of advance directive.) 

Powers of attorney can particularly benefit you when they're durable POAs, which mean they remain effective when you lack the mental capacity to make decisions for yourself. All powers of attorney become invalid once you die, the agent loses their legal authority and all the powers you granted them, so they can't manage your finances or make decisions about your end-of-life affairs, like dictating your funeral wishes or who gets your assets.

Related article: What to do when someone dies.

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Role of the estate executor

The executor is in charge of handling your estate and ultimately distributing the assets to your chosen beneficiaries. Executors are nominated in your will, which contains instructions pertaining to who you want to get your things. Because that person can’t be your executor until after you’re dead, they have no legal authority over your assets or decision-making while you're alive. They can't change the terms of your will or coax you into changing it for their benefit either. (If they do, then you’ve most likely got an invalid will on your hands.)

As part of estate administration, the executor’s duties may include opening an estate account, closing bank accounts, paying debts, making sure the mortgage is paid until the property is sold, and probating the will. If necessary, the executor also makes sure assets pour over into a trust. (Executors are not responsible for trust assets, though, which are overseen by the trustee. Learn about an executor vs. trustee.)

Because of the scope of their responsibilities, the executor usually receives compensation for their work — unlike someone who acts as power of attorney. If you die without a will, someone needs to petition the probate court to act as your personal representative and perform these same duties.

Can power of attorney and executor be the same person?

It's legal and common to choose the same person to act as executor and hold power of attorney. You could, for example, name a spouse or adult child to be executor in your will and name them agents for your medical and financial POAs. Just make sure whoever you choose is trustworthy and capable of carrying out your wishes.

As with many estate planning documents, you can update your choices if circumstances change, like if you remarry or your chosen person predeceases you. 

Related article: What is a power of attorney for a child?