Sometimes people come to an estate planning lawyer with questions about powers of attorney and wills that reveal a misunderstanding of how these important documents function. For example, some people ask why they need both. After all, since a power of attorney will allow you to name a representative, why do you need a will to name someone who will act as your executor?
While these types of questions are understandable when asked by people who don’t have a background in the law, you need to understand why they are incorrect as you begin the estate planning process. So, let’s take a closer look at wills, powers of attorney, and why you need both.
Your Representative Under a Power of Attorney
Through a carefully crafted power of attorney, you will choose a representative who will act on your behalf. Whether you want that person, called an agent or attorney-in-fact, to begin making decisions for you now, or only want that person to have power after you become incapacitated is entirely up to you. As a person who makes a power of attorney, called a principal, you have the ability to choose what kind of choices you want your agent to be able to make, and when he or she will be able to make them.
Yet the powers you grant your agent under a power of attorney will always be limited. If you make a durable power of attorney your agent can continue to represent you after you have become incapacitated. If you don’t make a durable power, your agent’s authority will end as soon as you lose your ability to make choices. Further, all powers of attorney terminate when you die.
Your Executor Under a Last Will and Testament
In addition to leaving an inheritance, a last will and testament allows you to choose an executor who will represent your estate. After you die, the executor will have to manage the probate process through which your individually owned property is transferred to new owners in accordance with state probate law.
You can only name an executor through your last will and testament. If you fail to leave behind a will, or if that will doesn’t meet legal requirements, you leave it to a court to decide who will represent your estate.
If you want the same person to be able to represent you both as your agent and as your executor, you can do that. However, you have to create both a will and a power of attorney to ensure that your choice of representative will serve in both roles.