When Do You Have Authority To Act As Agent Or Executor?

If you are listed as an Agent under a Power of Attorney, or an Executor in a Will, when do you have authority to act?

Powers of Attorney

Medical Power of Attorney:

For a Medical Power of Attorney, you only have authority to act when your “Principal” (the person making the Power of Attorney) is unable to make their own medical decisions.  This would be the case if they are unconscious, under anesthesia or other medications that would not allow them to think clearly, suffering from dementia, or have some other mental impairment that would not allow them to be able to make reasonable medical decisions for themselves.  If they have capacity, you have no authority.  So, you can’t authorize the doctor to give them a shot or do surgery when they are fully capable of making their own decisions.

Statutory Durable Power of Attorney:

For a financial power of attorney, called a “Statutory Durable Power of Attorney”, your Principal can select to have the Power of Attorney effective immediately upon signing, or “springing”, meaning that it will only be effective upon their disability.  If they choose to have it effective immediately upon signing, then their Agent (called an “attorney-in-fact”) may act with concurrent authority.  That means that they can act with or without the consent of the Principal and while the Principal is fully capable of making their own decisions.  This is often used when the Principal is going overseas, or needs to have the Agent transact business for them when they can’t be there, such as at a closing to buy or sell real property.

If the Principal elects to have the Statutory Durable Power of Attorney effective only upon their incapacity, or springing, then it usually requires that a doctor certify that the Principal no longer has sufficient cognitive ability to handle their own financial matters.  Until there is that certification by the doctor, the Agent has NO authority to act on behalf of the Principal.

With both types of Power of Attorney, the Agent only has authority to act on behalf of the Principal while the Principal is alive.  Once the Principal dies, the powers of attorney no longer have force and effect.  They die with the Principal.

Will

A Will, on the other hand, has no force and effect until after the person making the Will, called the “Testator”, dies.  Just because a Will names you as an Executor, you have no authority until the Will has been admitted to probate and the court appoints you.

The Will needs to be filed for probate because no one knows if it is really a valid Will for sure until the court makes that determination.  You also need to look at what is in the estate that needs to be transferred.  This will determine if an administration is needed or not.  If an administration is not needed, no one will be appointed as Executor.  Assuming that an administration is needed, just because you have been named as Executor in someone’s Will, it doesn’t mean that you can be appointed.  Some people that are disqualified to serve as Executors are people that have been convicted of a felony or crime involving moral turpitude, such as embezzlement.  So if the court determines that it is a valid Will, that an administration is required, and determines that you are not disqualified from serving as an Executor, then you must take your Oath, and sometimes a bond might be required.  Only then will the court issue Letters Testamentary, which are court orders that show you have authority to act on behalf of the estate.

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