What is the difference between an agent and an executor or personal representative?
An executor, termed a “personal representative” in Florida, is the person who takes care of another’s probate estate after that person dies. An agent may take care of the principal’s affairs only while the principal is alive. A personal representative may be named in a person’s will and is appointed by the court to administer the estate.
What is the difference between a “trustee” and an “agent”?
Like a Power of Attorney, a trust may authorize an individual (the “trustee”) to act for the maker of the trust during the maker’s lifetime. Like an agent, the trustee may manage the financial affairs of the maker of the trust. A trustee has power only over an asset that is owned by the trust. In contrast, an agent may have authority over all of the principal’s non-trust assets. Another important distinction is that a trustee may continue acting for the maker of the trust after the maker of the trust dies. In contrast, a Power of Attorney expires upon the death of the principal. Whether a trust or an agent is the most appropriate tool for a specific situation is a question that should be addressed to an attorney.
May a Power of Attorney avoid the need for guardianship?
Yes. If the alleged incapacitated person executed a valid Durable Power of Attorney prior to his or her incapacity, it may not be necessary for the court to appoint a guardian, since the agent already has the authority to act for the principal. As long as the agent has all necessary powers, it may not be necessary to file guardianship proceedings and, even when filed, guardianship may be averted by showing the court that a Durable Power of Attorney exists and that it is appropriate to allow the agent to act on the principal’s behalf.