We are often asked who should be appointed to act as an attorney or an executor, and there can be confusion over the duties and responsibilities each role involves.
The following two articles provide an insight as to what you should consider when choosing individuals for these different appointments.
What should you consider when choosing an attorney?
Choosing who to appoint as your attorney(s) is the most important part in the process of making a Lasting Power of Attorney (“LPA“), as they will be who makes decisions about your property and financial affairs and/or health and care should you become incapacitated. Acting as an attorney is an important role. It must be someone who you trust and who knows you well enough to make decisions that are in your best interests.
Who can act as attorney?
You can choose whoever you wish to act as attorney – a friend, family member, a professional or a trust corporation. An individual must be aged over eighteen with mental capacity, who is not bankrupt or a person in relation to whom a debt relief order applies. If an attorney of an LPA for financial decisions becomes bankrupt after the LPA has been made, they will no longer be able to act.
If a spouse or civil partner is chosen to act as an attorney, their power will end if that relationship is dissolved or annulled unless there is an instruction in the LPA that the spouse or civil partner can continue to act as attorney in such circumstances.
When considering the choice of attorney, it might be helpful to think about how well they manage their own finances or make decisions about their own wellbeing or the wellbeing of others. Most people choose a family member or a close friend to be their attorney, especially for an LPA for health and care. Your attorney may not be needed to make decisions for quite some time; you should allow for this, someone younger may be more appropriate. Talk to the person you want to appoint as your attorney before you make the LPA. You can express your wishes and preferences and they can confirm they are comfortable taking on the role.
Professional attorneys
Both professional and lay attorneys are entitled to be reimbursed expenses; however, professional attorneys will charge a fee for acting and these costs will be paid for from your assets. Unlike having a professional executor, it is more unusual to choose a professional attorney given the costs involved and the depth of understanding of your personal affairs and wishes required to fulfil the role.
What happens if my attorney cannot or will not act any more?
When making an LPA, it is possible to choose replacement attorney(s) who can take over from your original attorney(s) if they are no longer able, or willing to carry out their role.
Choosing an executor
Choosing an executor is one of the most important decisions when making a Will. Appointing the right people will help to ensure that the administration of your estate runs smoothly.
What is the role of executor?
Executors are the individuals appointed in your Will to administer your estate. Your “estate” comprises everything you own at the time of your death. Your executors are responsible for collecting your assets and distributing them in accordance with your Will. Executors will apply for a grant of probate (if required) and must settle any liabilities and inheritance tax.
Who can I appoint?
Any number of executors can be appointed, but for practical reasons we recommend choosing at least two and no more than four to act.
Factors to bear in mind:
- Trust
You should choose someone trustworthy and reliable. Being an executor involves significant responsibility; executors deal with your personal assets and have a legal duty to act in the best interests of your estate.
- Time
Acting as an executor can be very time-consuming and the probate process takes on average nine to twelve months to complete. Consider whether your chosen executor(s) will have enough time to devote to the role.
- Skills and knowledge
Your executor(s) should be able to understand legal matters, accounting and administrative work. Some complex estates involving foreign assets, for example, may require specialist knowledge regarding tax and applicable reliefs. You may therefore wish to appoint a professional executor with relevant experience.
- Relationships
If you are intending to choose a family member as your executor, consider the impact this may have on other relatives and their relationships. If you choose to appoint co-executors, consider whether they would work well together. Appointing a professional executor can be beneficial as they would be a neutral party, someone who would be able to mediate in the event of disagreement between family members or friends.
If you would like further advice on making an LPA or Will, please contact the Private Client team.