Defining the Difference: Executors, Guardians and POAs

When it comes to planning a funeral and authorizing funeral arrangements, executors, guardians and people holding powers of attorney (POA) all play unique roles.   

In this post, we break down what each of those roles are, and the authority they have in a person’s life and subsequent death.

Executors

Sometimes individuals are lead to believe that an executor of a will or estate has the right to control final disposition which is the cremation, burial, entombment or donation of a deceased’s body. This is not true in New Jersey. Being designated an executor means that the individual can control a decedent’s assets, not the final disposition. 

As a matter of fact, New Jersey laws governing funeral homes and cemeteries assign only one role to the executor when it comes to disposition—to inform the funeral agent of their appointment in a decedent’s will, if one in fact had been designated. The role of an executor is limited to financial matters such as probating the will, locating the deceased’s property, opening an estate checking account, paying bills (including the funeral bill), filing appropriate tax forms and the like. 

The job of the executor ends after meeting the obligations of the estate and disbursing any remaining inheritances to the next-of-kin and/or other named persons or groups.

Guardians

 A guardian may or may not have the right to control final disposition, depending on the powers vested by a probate court. This needs to be determined on a case-by-case basis and put in writing in the guardianship papers. 

Guardianship is a legal relationship wherein a probate court appoints someone (“the guardian”) to make personal and/or financial decisions for another person (“the ward”). Courts typically appoint the ward’s spouse or an adult child to this position, but can appoint anyone they believe will act in the individual’s best interest.

In some cases, the New Jersey Office of the Public Guardian assumes control of a person’s personal and financial affairs. Upon the death of a state ward, the Public Guardian usually defers to the next-of-kin to make funeral arrangements. If there is no next-of-kin or the next-of-kin refuses to make funeral arrangements, the Public Guardian will assume that responsibility.

Power of Attorney (Attorney-in-Fact)

People holding a power-of-attorney (POA) for a relative or friend at the time of death often believe that they have the right to make funeral arrangements for the person after they die. This is not the case. 

The POA is not a person. It is a legal document in which one individual (“the principal”) authorizes another individual (“the attorney-in-fact”) to act on their behalf in legal and financial matters while alive. Under the terms of most financial POA documents, a designated attorney-in-fact can prearrange and prepay the principal’s funeral, but they cannot make arrangements at the time of death as the POA document becomes null and void upon the principal’s death. 

The attorney-in-fact also cannot make funeral arrangements for another person on the principal’s behalf unless he or she is also an individual, such as a spouse or child, with a relationship to the deceased as outlined in New Jersey’s right to control law (N.J.S.A. 45:27-22).