Your Will Names Your Executor. But Who Can Act for You While You Are Alive?
Imagine this:
Your mother has had a will for many years. It names your older brother as the executor of her estate.
She also has a power of attorney that names your father as her agent. There is just one problem: Your father died several years ago.
Your mother is doing well, so the family has not thought much about these documents. Everyone assumes that if something happens to her, your brother will be able to step in and handle whatever needs to be done.
But what if your mother becomes sick and can no longer manage her finances?
Could your brother simply take over because he is named as the executor in her will?
No.
This situation highlights two important estate-planning questions: Who has legal authority to act for you while you are alive, and who will handle your estate after you die?
Those could be the same people, or different people. The designations will be made in two separate documents.
What Happens When the Person Named in Your Power of Attorney Dies?
Consider the example above.
Your mother named your father as her agent under a power of attorney. Because he has died, he can no longer act on her behalf.
If he was the only agent named in the document, another family member does not automatically step into his place.
Your older brother does not gain authority simply because he is her child. And being named as executor in her will does not give him the authority under her power of attorney.
If your mother still has the capacity to execute a new power of attorney, she may name a new agent. She can also consider naming a successor agent who could serve if her first choice dies, becomes incapacitated, or is otherwise unable to act.
Alabama's Uniform Power of Attorney Act specifically recognizes both original and successor agents and addresses circumstances in which an agent's authority terminates.
This is one reason it is important to review estate-planning documents after major life changes—and periodically even when everything seems to be going well.
An old document may no longer name the person you want or need to act on your behalf.
A Will and a Power of Attorney Serve Different Purposes
The easiest way to understand the difference is to consider when and how each document is designed to operate.
A Power of Attorney: Planning for Your Lifetime
A financial power of attorney allows you to appoint someone to act on your behalf for financial and legal matters within the authority granted by the document.
Depending on the powers provided, an agent may be able to help with banking, property, taxes, business affairs, and other financial transactions.
A properly prepared power of attorney can be especially important if you become unable to manage these matters yourself.
A Will: Planning for After Your Death
A will directs what happens to your estate after you die.
It can:
Name the person you want to serve as executor.
Identify beneficiaries for assets that pass through the will.
Nominate guardians for minor children.
Provide instructions for the administration of your probate estate.
In Alabama, the executor is responsible for carrying out the directions of the will and administering the estate after a person's death.
That is different from acting as someone's agent while they are alive.
Being named as executor does not give someone the authority to act on your behalf while you are alive.
Likewise, the person you name as your agent under a power of attorney does not automatically become the person who will administer your estate after your death.
What If You Become Incapacitated Without a Current Power of Attorney?
Now imagine that your mother becomes sick and can no longer manage her finances.
Her bills still need to be paid. Her bank accounts may need attention. Important financial decisions may need to be made.
But when the family reviews her power of attorney, they discover that the only person named as her agent died years ago.
The family cannot simply choose one of the children to take over. Depending on the circumstances, they may need to seek court involvement to obtain the authority necessary to manage certain aspects of her affairs.
That can add time, expense, and stress to an already difficult situation.
The opportunity to avoid this problem disappears when someone loses the capacity to execute a new power of attorney.
That is why incapacity planning works best when it is completed before a crisis occurs.
Do You Need a Power of Attorney If You Have a Will or Trust?
For many adults, a properly prepared financial power of attorney is an important part of incapacity planning.
A will or trust does not automatically give someone authority to act for you simply because you are no longer able to manage your affairs.
A trust may provide a way to manage assets held in the trust during your lifetime and after your death. But it does not necessarily address every financial matter you may have.
You may own assets outside the trust or have financial responsibilities that require someone to act on your behalf. A power of attorney may provide that authority, depending on the powers granted in the document.
The larger point is simple:
An estate plan should address not only what happens after your death, but also what happens if you are alive and unable to manage your own affairs.
What About Healthcare Decisions?
Financial decisions are only one part of incapacity planning.
An advance directive for health care allows you to designate someone to make healthcare decisions for you if you are unable to make or communicate those decisions yourself. It can also provide instructions regarding your healthcare wishes.
This is separate from a financial power of attorney.
As a result, an estate plan should address several different questions:
Who can manage my financial affairs if I become incapacitated?
Who can make healthcare decisions for me?
Who will administer my estate after my death?
Who should receive my assets?
When Should You Review Your Estate Plan?
You do not have to wait for a crisis to discover that your documents are outdated.
Consider reviewing your estate plan if:
Someone named in your documents has died.
Your agent, executor, or other fiduciary is no longer willing or able to serve.
You have experienced a marriage, divorce, or significant change in family circumstances.
Your financial situation or assets have changed.
You have not reviewed your documents in many years.
When reviewing your power of attorney, ask:
Who is my current agent?
Have I named a successor agent?
Would I still trust this person and want them to act on my behalf?
When reviewing your will, consider whether the person named as executor is still the right choice for your circumstances.
You should also consider whether your will, power of attorney, advance directive for health care, beneficiary designations, joint ownership arrangements, and trust work together to accomplish your goals.
What This Means for Your Estate Plan
Estate planning is about preparing for the different circumstances your family may face.
A power of attorney can provide someone with authority to act on your behalf during your lifetime, including if you become unable to manage certain affairs.
A will can provide instructions for the administration of your estate after your death and name the person you want to serve as executor.
They serve different purposes and address different time periods.
So if the person named in your power of attorney has died, do not assume that another family member can simply step in.
Take a few minutes to review your documents now. Make sure they still name the people you trust and provide the authority your family may need.
Your Next Step
At Provident Law, we help families create and review estate plans designed to address both incapacity during life and the administration of an estate after death. Our goal is to make estate planning clear, practical, and easy for your family to navigate when you need it most.
About the Author
Colin McMichen is an experienced attorney and the founder of Provident Law / Estate Planning LLC, a Birmingham, Alabama-based firm. With a focus on estate planning and probate law, Colin is dedicated to helping individuals and families navigate complex legal matters with confidence.
Disclaimer
This article is intended to provide general information and help you think through important estate planning decisions. It is not legal advice and does not create an attorney-client relationship. Because every situation is different, we encourage you to consult with an experienced estate planning attorney to discuss your specific goals and needs.
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