Who’s in Charge Here?

Who’s in Charge Here?

The differences between an attorney-in-fact, guardian, and executor

You’ve heard the terms: attorney-in-fact, guardian, executor. But what are the duties of each, and what are the differences among them? If you or a loved one is considering assigning an attorney-in-fact, guardian, or executor, you’ll need to understand the responsibilities and roles of each one.

Attorney-in-fact

You’ve probably heard someone say, “I’m Dad’s power of attorney.” But, more accurately, a “power of attorney” is a physical document that is voluntarily signed by one individual—the principal—and allows another individual—the attorney-in-fact—to conduct business on the principal’s behalf.

A power of attorney doesn’t deprive the principal of the authority to take care of his or her own business; it merely appoints the attorney-in-fact to help out or take over in case the principal is unable to conduct business. Let’s imagine you’re the principal and you prefer to handle your business until the attorney-in-fact is needed. If that’s the case, you can have the power of attorney require documentation—such as a doctor’s certification—in order for the attorney-in-fact to assume authority.

The most common type of power of attorney is “general durable.” “General” means the power of attorney is broadly written to allows the attorney-in-fact to do many things instead of just a few. “Durable” means the power of attorney continues even if you become incapacitated. There are some things you cannot do with a power of attorney, however. Again, let’s assume you’re the principal. Under a general durable power of attorney, an attorney-in-fact cannot fore you to do anything—including moving into a nursing home.

Under Indiana law, an attorney-in-fact—unless otherwise stated in the power of attorney—must use due care to act for the benefit of the principal and not for anyone else. The attorney-in-fact also must keep, for six years, complete records of all transactions he or she entered into on behalf of the principal. Lastly, the attorney-in-fact must render written accountings if an accounting is ordered by a court, requested by the principal, or requested by other individuals (such as a child or heir of the principal).

What makes a power of attorney invalid? Answer: when the principal who signed it lacked the legal capacity to do so. If an individual suffers from dementia or another illness, it may be necessary to wait until he or she recovers or—if the illness is progressive—to opt for a guardian instead of an attorney-in-fact.

Guardian

In Indiana, a guardian can be a “guardian of the person,” a “guardian of the estate,” or both. And while an attorney-in-fact is assigned by a principal, a guardian must be court-appointed. But the court cannot appoint a guardian unless the protected individual is incapacitated. Because the definition of “incapacity” is fairly broad, a guardianship can be restricted to certain areas. So, let’s say you are a guardian of the person. Your duties may be limited to ensuring that a protected individual takes his or her prescribed medications (so as to control a brain disorder, for instance). However, if an individual has trouble handling money or business affairs and has no attorney-in-fact, a guardian of the estate may be required. As another example, a court can appoint you and your siblings to be guardians of the person, while a bank trust department can become guardian of the estate.

Like an attorney-in-fact, a guardian must keep meticulous records. A guardian of the estate must file financial accounts at least every two years, and a guardian of the person must report on the condition of the protected individual every two years, as well. And, like a power of attorney, a guardianship ceases when the protected individual dies. Following the death of a protected individual, a guardian of the estate must file a final accounting.

Executor/Executrix

That brings us to court-appointed individuals who carry out the terms of a last will and testament. There are actually two terms for this individual: an executor (if the individual is a man) or an executrix (if the individual is a woman).

While the executor or executrix is carrying out the terms of the will, there can be some discretion. Common situations include the selection of appraisers and auctioneers, and how to divide real estate (sell? deed?) when the will does not dictate the outcome.

Like a guardian, an executor or executrix prepares meticulous financial accountings, including an estate inventory. He or she also renders a final accounting that shows the inventory, all income, all expenses, all previously made distributions, and a proposed final distribution.

To learn more about the specific roles of an attorney-in-fact, a guardian, and an executor/executrix, contact Roger Bennett at rwb@hereforlife.com, or call 765-742-9066.

Disclaimer:
The content of this blog is intended to be general and informational in nature. It is advertising material and is not intended to be, nor is it, legal advice to or for any particular person, case, or circumstance. Each situation is different, and you should consult an attorney if you have any questions about your situation.

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