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Can a power of attorney override an executor?

On Behalf of | Mar 7, 2023 | Probate Litigation |

An executor may face challenges from the family while probating an estate. A question might even arise regarding what authorities the decedent’s power of attorney has to make decisions.

Understanding the differences between the two roles can clear up confusion on the issue.

What is a power of attorney?

Someone uses a power of attorney to grant another person authority to act as a personal representative or agent. The document should specify the limits of this authority, which can be restrictive or liberal.

A durable power of attorney grants a person the right to make specific decisions for someone unconscious or lacking mental competency. The authority can involve medical and financial decisions. For example, the document can permit the agent to pay bills, sell property, sign checks and file taxes.

A power of attorney remains in effect while the principal who authorizes it is alive. At death, such powers cease because the agent has no living person to represent.

What does an executor do?

The probate court assigns an executor to oversee the process of probate. The individual will determine if the estate has enough capital to pay creditors and taxes and then distribute what remains to the heirs.

The agent with a power of attorney cannot officially interfere except by making a legal challenge through the courts. Because the agent operates on behalf of a living person and the executor does for a decedent, the roles cannot overlap.

The probate process cannot begin until the notarization of the death certificate. The possibility even exists that the agent with power of attorney can serve as the executor of the estate, but this would not alter the distinction between the two duties.