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Personal Representative v. Power of Attorney

Personal Representative v. Power of Attorney

One of the most common questions I get when I deliver presentations is: What is the difference between a personal representative and a power of attorney?

A personal representative is the person appointed by the Judge who has the legal duty to administer the probate estate of the deceased person. If the deceased person (decedent) had a valid will, then the Judge will appoint the person or company nominated in the will, as long as they are qualified to serve under Florida law. A personal representative (called an executor in some other states) has many jobs, including identifying, gathering, valuing, and safeguarding the decedent’s probate assets, hiring an attorney to file and serve the notice of administration, publishing a notice to creditors, paying valid claims, paying the expenses of administrating the estate, distributing assets to the beneficiaries, and hiring certified public accounts, appraisers and investment advisors, among others. To qualify to serve as a personal representative, an individual must be either a Florida resident or a close relative of the decedent, such as a spouse, sibling, parent, child, Aunt, or Uncle (regardless of residence). A person who is not a legal resident of Florida, and who is not closely related to the decedent, cannot serve as a personal representative.

A power of attorney names an agent or attorney-in-fact to act in your place while you are alive. A power of attorney can be as broad or as specific as you need it to be, which is why the document must be carefully tailored to the client’s needs. Many times a power of attorney (“POA”) will give the agent power over finances, health care, and perhaps even property. It can also be helpful for some to create a power of attorney over children. In Florida, a POA is valid from the moment it is signed, so it can be a very dangerous and powerful document, especially if very broad powers are granted. It can also survive the incapacity of the person granting power. Since a POA is only valid while the grantor is alive, once the person granting power is dead, the agent no longer has any power under the POA.

The same person could be an agent under a POA and a personal representative named in the will, but they will never have both jobs for the same person at the same time because a POA agent only has a job while the person is alive, and the personal representative only has a job after the person has died.