Does Power of Attorney extend to taking over as executor of a will instead of the incapacited person?

UPDATED: Sep 30, 2022

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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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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