Who’s in Charge? Power of Attorney vs. Executor of Will

When a loved one becomes incapacitated due to an accident or illness, or when a family member passes away, important decisions about managing their affairs arise. Someone must step up to handle these responsibilities effectively.

In these situations, the roles of a Power of Attorney (POA) and an Executor of Will are essential. While they may seem similar, each serves a distinct purpose tailored to specific circumstances.

Let’s break it all down so you can understand their responsibilities, how they work, and why it’s crucial to have both roles clearly defined.

Power of Attorney (POA)

A Power of Attorney (POA) is a legal document that allows someone (known as the agent) to act on behalf of another person (the principal).

The main purpose of a POA is to ensure that someone you trust can make important decisions if you’re unable to do so yourself.

Types of POAs in Tennessee

There are several types of POAs, each serving a specific purpose:

  • General POA: Covers a wide range of financial and legal matters.
  • Durable POA: Stays in effect even if the principal becomes incapacitated.
  • Springing POA: Only takes effect under specific circumstances like a doctor’s confirmation of incapacity.
  • Medical POA: Focuses on healthcare decisions, such as treatments, surgeries, and end-of-life care.

What can a POA Do?

A POAs authority depends on the type you choose. Here are some examples of what they can handle:

  • Paying bills and managing bank accounts
  • Handling property transactions
  • Filing taxes
  • Making medical decisions (with a Medical POA)

Why it’s Important to Choose Your Agent Wisely

Picking the right person for this role is critical. The agent has significant control over your personal and financial matters, so they should be trustworthy, responsible, and have your best interests at heart.

Unfortunately, there’s always a risk of abuse, so you may want to add safeguards like requiring multiple signatures for major decisions or setting limits on their authority.

Executor of Will

An Executor of Will, sometimes called a Personal Representative in Tennessee, takes over after someone passes away. Their job is to carry out the instructions outlined in the will.

Duties of an Executor

The executor’s responsibilities include:

  • Filing the will with the probate court
  • Identifying and managing the deceased’s assets
  • Paying off any outstanding debts and taxes
  • Distributing assets according to the will’s instructions

Legal and Fiduciary Responsibilities

Executors have a fiduciary duty, which means they must act in the best interest of the estate and its beneficiaries. They’re also legally obligated to follow the will’s instructions to the letter.

Executors can receive compensation for their work, which is typically outlined in the will or determined by state law.

Major Differences between Power Of Attorney and Executor of Will

While both roles involve handling important matters, they operate at entirely different times and for distinct purposes. Here’s a simple comparison:

AspectPower of AttorneyExecutor of Will
When ActiveWhile the principal is aliveAfter the principal’s death
Authority ScopeFinancial, legal, and medical decisionsManaging and distributing the estate
TerminationEnds upon death or revocationBegins upon death
Appointed ByThe principalNamed in the will or appointed by the court

It’s worth noting that the same person can serve as both POA and Executor, but their responsibilities remain distinct.

Why You Need Both a Power of Attorney and a Will

Having a POA and a will in place ensures that your wishes are respected whether you’re incapacitated or have passed away. Here’s what could happen without them:

Without a Power of Attorney

If you’re unable to make decisions due to an illness or accident and don’t have a POA, a court may appoint a conservator to manage your affairs.

This process can be time-consuming, expensive, and emotionally taxing for your family.

Without a Will

If you pass away without a will (called intestacy), Tennessee law determines how your assets are distributed. Here’s a quick breakdown:

  • Assets are typically divided between your spouse and children.
  • Unmarried partners, stepchildren, or close friends aren’t entitled to inherit unless explicitly named in a will.
  • The court appoints an administrator to handle the estate, which might not align with your family’s preferences.

By having both a POA and a will, you maintain control over who manages your affairs, how your assets are distributed, and what happens during critical moments.

Need Help with Estate Planning in Tennessee? Contact Foust & Foust

At Foust & Foust, PLLC, we understand how important it is to protect your legacy and make sure your loved ones are cared for.

Whether you need help drafting a Power of Attorney, creating a will, or managing probate, our team is here to provide personalized guidance.

Don’t wait to secure your family’s future. Call us today at (865) 203-4041 to schedule a consultation. Let’s work together to ensure your wishes are honored and your family is protected.

Rusty Foust is a Knoxville-based estate planning attorney with a proven track record of helping families protect assets and secure financial legacies. A Certified Estate Planning Specialist, he personalizes every plan to fit clients’ unique needs, ensuring peace of mind. Rusty earned his J.D. from the University of Memphis and is admitted to practice in Tennessee and the U.S. Tax Court. He serves as Secretary of the Mid-South Forum of Estate Planning Attorneys and is a Board Member for Tapestry for Women, Inc.

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