QUESTIONS ABOUT AGENTS, ATTORNEYS-IN-FACT AND EXECUTORS

When you’re devising an estate plan, you may come across several terms used in relation to people who will play an important part role in your plan. The title for these people, or organizations differ, and each has its own specific meaning and importance. It’s important to understand these terms before you begin the estate planning process.

Q: Is an agent the same as an attorney-in-fact?

A: Essentially, yes. Whenever you grant power of attorney, the person who receives the power becomes your attorney-in-fact, also known as your agent. An attorney-in-fact is not the same as a lawyer, though you can appoint your lawyer to act as your attorney-in-fact.

Q: If I appoint someone as my attorney-in-fact, does that person continue to act on my behalf after I die?

A: No. All powers of attorney end automatically when you die. Even if you appoint a durable power of attorney, allowing your agent to act after you lose capacity, this power does not continue after your death. Further, if you don’t grant a durable power of attorney, these powers terminate as soon as you lose capacity.

Q: Can my attorney-in-fact act as my executor?

A: Yes. However, appointing an attorney-in-fact does not automatically give that person the right to be your executor. If you want your attorney-in-fact to act as your executor, the only way to do this is to name this person as your executor in your last will and testament. If you don’t nominate an executor in your will, the court will have to appoint someone.