I am the executor of my mother's estate. Can my sister have "power of attorney?"

Question

I am the executor of my mother's estate. Can my sister have "power of attorney?"

Answer

Is your mother still alive? If so, Yes. The Executor's duties do not begin until your mother has died. If she has died, the power of attorney dies with her, and there is nothing that your sister can do after that point.

THIS RESPONSE IS NOT LEGAL ADVICE, SINCE I DO NOT HAVE ALL OF THE INFORMATION THAT WOULD BE REQUIRED, AND I DO NOT HAVE A REPRESENTATION AGREEMENT WITH YOU.

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Answer

I agree with Attorney Jacobson but will put this a little differently.

Powers of attorney are for the living only; executors are in charge after death. There cannot be an executor and an agent under a power of attorney simultaneously as that is a legal impossibility.

So the first question is whether your mother is alive or dead? If she is alive then she needs both a durable financial power of attorney for finances and a health care power of attorney and a living will/advance directive. A living will is not a will in the sense that it transfers assets; it only serves as a directive to the health care agent as to what should happen if the principal (here your mother) cannot make certain health care decisions for herself in regard to being kept alive by a machine or being administered food, water and pain medication. In addition to all of these things your mother needs a will or revocable living trust to provide for the disposition of whatever assets she has at her death. However, the will or trust does not become operative until after your mother's death and while the will can name an executor that person has no duties and the naming is not effective because it can always be changed by your mother (assuming mental competency) while your mother is alive.

If your mother is dead, then all prior powers of attorney cease and the power of attorney is no longer in effect. The will is the operative document once its probated and an executor is appointed. The only duties of an agent under a power of attorney are to provide a final accounting of the principal's assets to the duly qualified executor of the estate as outlined in the will.