Hi everyone, I’m Sabrina, a Wills & Estates lawyer.
A Will can only be used when the testator (person who made the Will) has already passed away. The Will cannot be used during the testator’s lifetime for the executor to manage the estate or the beneficiaries to receive their inheritance.
Practically, this means that after the testator passes, the executor must send both the Will and the Death Certificate issued by the funeral home to the Court before they can be appointed and be allowed to manage the estate.
The problem is that not everyone passes away suddenly from a car accident or a hiking incident. There are many people who pass away due to old age or illness, meaning they may be critically ill for months or years before they pass. Since the Will cannot be used during this time, what can they do?
This is where the Power of Attorney, POA, steps in. A POA is used when the Grantor (person who makes the POA) is still alive but unable to make decisions, usually because they are unconscious or mentally incapable of making decisions.
There are two types of POAs. One is POA for health care, which allows the appointed POA to make medical decisions on behalf of the grantor. To save the POA heartache and heavy decision-making obligations, the grantor can put their wishes into the POA and the advanced health care directives. For example, they can specify whether they would refuse painful treatments such as being put on a ventilator or having chest compressions done to them, if there is absolutely no chance for full recovery. They can also state where they want to receive end of life care – the common choices are at the hospital, at a hospice, or in their own private homes.
The second type is a POA for property, which allows the appointed POA to manage anything related to money or assets for the Grantor. The Grantor can make this authority narrow or wide. We had clients who authorized their child to manage all their assets, including all their bank accounts, real estate, vehicles, companies when they become unconscious. In contrast, we also had a husband who was only willing to authorize the wife to manage one bank account should he become mentally incapable of making decisions.
In summary, a POA is used when a person is still alive but is mentally incapable of making decisions. Whereas a Will is used when the person has passed away. Just as the Will cannot be used when the Testator is alive, the POA can no longer be used once the Grantor passes away. The appointed POA has the obligation to tell the banks and other institutions that the Grantor has now passed away and the POA on file is now void. We have seen cases where the appointed POA did not do this, moved money after the Grantor passed away, and then was sued by the beneficiaries and had to return all those money back, sometimes with interest.
The correct and legal way is to hire an estate lawyer and apply for Probate Certificate after the Grantor passes away. The approved certificate would give the executor legitimate authority to manage the estate.
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