Does Power of Attorney extend to taking over as executor of a will instead of the incapacited person?
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Does Power of Attorney extend to taking over as executor of a will instead of the incapacited person?
My older brother who we had lost contact with was named as the executor of my mothers will. We were not made aware that at the time of her death he had Alzheimer’s disease. He had given his girlfriend his power of attorney. She proceeded to execute the will and sign his name in all correspondence to us. Was this legal or should she have told us of his diagnosis and a new executor chosen?
Asked on January 15, 2017 under Estate Planning, Massachusetts
Answers:
SJZ, Member, New York Bar / FreeAdvice Contributing Attorney
Answered 7 years ago | Contributor
No, a power of attorney would not let the attorney-in-fact (person granted power by the POA) function as executor, because *only* the person or persons designated by the will (or named by the court) may be executor; the persons named as executor have no authority to delegate their power or responsibilities to another. If the designated executor is incompetent or otherwise unable (or, for that matter, unwilling) to function, then if there is a back-up executor named, he or she takes over; if not, the court has to appoint someone to the role.
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