Here's a really good question. What is the difference between a guardian, an agent, a surrogate and an executor? This question was asked during a recent workshop on estate planning tools and principles. Here's the answer.
A guardian is an individual that is appointed by a court, generally the probate court, to act on behalf of an individual who has been adjudicated as incompetent or incapacitated. The guardian could be responsible for the person (known as the ward) or the property of the ward or both (plenary). A guardianship may be required when an individual does not have the ability to make their own decisions, either because they are too young (under 18) or they have lost their mental capacity due to age or an accident. The above referenced question was asked relative to a senior individual who is suffering from a memory disorder.
An agent is an individual appointed in a power of attorney for the purpose of acting on behalf of the principal. No estate plan would be complete without a comprehensive power of attorney. The intention is to provide selected persons with authority to make both legal and financial decisions on behalf of the principal. In some states, this authority can begin immediately when the power of attorney is signed or later, when the principal is mentally incapacitated. In either case, the power of attorney is intended to avoid the necessity of a guardianship.
From a health care perspective, there is also the role of a surrogate. A surrogate would typically be an individual appointed to make medical care decisions. This appointment would be reflected in a Health Care Power of Attorney, Health Care Surrogate or Living Will instrument. The appointed person would make every day medical care decisions or carry out end of life declarations depending on the scope of the responsibilities delegated. Usually, a surrogate would have no authority to act unless the principal was incapable of acting on their own behalf. Examples of the types of decisions a surrogate would make include the right to consent to surgery, consent to treatment, consent to the transfer to or from a medical facility, the employment of doctors, nurses, therapists or other care givers and in some instances, to carry out the declaration to remove or refuse long prolonging procedures, such as respiration, hydration and nutrition.
An executor (or personal representative) is the person appointed in a Last Will for the purpose of administering the estate of a person who has died (decedent). The Last Will becomes the operative instrument at the moment of death and all powers of attorney (financial and health care) are no longer effective. The responsibility of the executor is to gather and value the assets of the estate, identify and pay any creditors of the estate and to distribute the remaining estate assets to the named beneficiaries. Easier said than done in most instances.
And while we are on the subject, a trustee is an individual appointed in a trust instrument. Trustees can be current, acting now, or successor where they are intended to act in the future. A successor trustee would be empowered in the event the original trustee was unable to continue as a result of mental capacity or death. Trustees and executors have similar responsibilities but their responsibility may extend to different assets.
Each of the roles mentioned above carries significant responsibilities. The persons selected should be trustworthy and have the delegating principal's best interests at the forefront. Each role has certain rights and powers that enable the appointed person to carry out their duties. In addition to a primary choice, there should be one or more alternates in the event any of the named persons are unable or unwilling to carry out their appointed role.
These concepts are complex and require serious thought and contemplation before selecting your desired agents, surrogates, executors or trustees. Estate planning should not be a do-it-yourself project. Your best course of action is to work with a qualified legal professional who can provide guidance about the differing roles and their responsibilities.