When looking to manage your financial and personal affairs in life and death, it can look fairly complicated at first glance. You will hear numerous legal terms, registration of documents and different roles. It is essential to look at each of these issues in isolation and then bring them together to create a broader, more coherent picture.

Executors and lasting powers of attorney

Many people see executors and lasting powers of attorney as the same, one or more individuals appointed to look after your affairs. The situation is further complicated because the same person could be appointed to both roles. In reality, the role of an executor and a lasting power of attorney is very different. Nevertheless, as a means of protecting your finances and maintaining your personal affairs, both have an essential part to play.

Due to the often overarching power placed upon an executor and a lasting power of attorney, in specific circumstances, you must trust the individuals appointed to these roles.

Role of a lasting power of attorney

The role of a lasting power of attorney will end upon your death. As we touched on above, even though the lasting power of attorney and executor may be the same person, the arrangements are very different. The primary role of a lasting power of attorney is to manage your finances and/or personal affairs in life when you are incapacitated. This may be as a result of:-

• An accident
• Illness
• Loss of mental capacity

There will be occasions when individuals do not feel comfortable making financial/personal decisions on their own and will hand over control to a lasting power of attorney. Interestingly, where you are deemed to have the mental capacity to make a decision, you can revoke a lasting power of attorney at any time. This must be done in writing in a statement known as a "deed of revocation".

Role of an executor

Under the terms of your will, you would appoint one or more executors to administer your affairs upon death. It is important to note that an executor, in this capacity, has no control over either your financial or personal matters in life. Their role would become "active" upon your death and their appointment as part of your will. Some of the more common roles of an executor include:-

• Register your death
• Arrange copies of your will
• Apply for probate
• Arrange funeral
• Take responsibility for estate assets
• Distribute funds/assets to beneficiaries
• Pay inheritance tax

In reality, the role played by an executor will depend upon the size and complexity of the deceased's estate. However, as a backup, it is sensible to appoint a substitute executor in case those first named cannot fulfil their legal obligations.

Managing your affairs while alive

Unlike the appointment of an executor for your estate, deemed active upon your death, the situation is different for a lasting power of attorney. You need to register the appointment of a power attorney before you are deemed unable to do so, whether by loss of mental capacity, accident, injury or illness. It is active as soon as the lasting power of attorney is officially registered with the Office of the Public Guardian. 

This means that the appointed individual can make decisions on your behalf from the registration date. As a consequence of the potential "dangers" of having dual control over your affairs, many people leave it as long as possible before registering a lasting power of attorney. The obvious downside is that if you were incapacitated in some way and deemed unable to make a decision, you would not be able to register the legal document. In this scenario, your direct family and/or connected parties must apply to the courts for the right to administer your affairs. This can be time-consuming and expensive!

For reference, there are two types of lasting power of attorney which relate to:-

• Health and welfare
• Property and financial affairs

In theory, you could register different people for each type of lasting power of attorney. However, in reality, most people will appoint the same person, incorporating both types of lasting power of attorney into one agreement. Upon death, it is essential to note that the role of a lasting power of attorney is terminated. They will only have an active part to play in the management of your estate if they are appointed an executor as part of your will.

Managing your estate in death

Managing your estate in death is more straightforward, with the executor appointed as part of your will. As we touched on above, this can be the same person(s) appointed to be a lasting power of attorney, but this is a separate legal arrangement. The role of the executor will begin upon your death with specific instructions, as part of your will, which they must carry out on your behalf.

If you die without a will, this is known as dying intestate and subject to a different set of rules. While subject to potential variation in different parts of the UK, your closest blood relatives would inherit your estate, which would be split on a predetermined basis. As your closest blood relatives may not necessarily be the ones you would have chosen to inherit your estate, a will and an executor appointment are crucial.

On the rare occasion that an executor refuses to carry out your written instructions, legal action can be taken by the beneficiaries. For example, they may refuse to carry out your instructions because of non-payment of fees or allowable expenses - the courts would resolve this matter.

Should I appoint an executor and lasting power of attorney?

At the very least, it is important to appoint an executor to your estate as part of your written will. As we grow older, we become susceptible to various illnesses and different stages of mental incapacitation, which is where a lasting power of attorney can prove invaluable. Therefore, it is important to appreciate the role of a lasting power of attorney in life and an executor on your death. 

As the role of the lasting power of attorney ends as the executor's role begins, this ensures you have a degree of protection in life and death. Failure to appoint individuals to these roles could lead to significant expenditure and court time for family and friends. Nobody wants to see individuals fighting over your estate!

Summary

While understandable to a certain degree, many people need clarification on the role of a lasting power of attorney with that of an executor of your estate. Neither role will be active simultaneously, with the lasting power of attorney offering protection in life and the executor appointment protecting your estate and ensuring your instructions are carried out in death. Therefore, it is essential to take professional advice when deciding which individuals to appoint to the various roles and the appropriate production/registration of legal documentation.