A Power of Attorney is typically a planning document that enables an individual to appoint someone who can make decisions, access information, and handle matters for the individual. Generally, there are two types of Powers of Attorney; a financial power of attorney and a power of attorney for healthcare/medical decisions. In Georgia, our code provides a standard form for a medical power of attorney called an “Advance Directive for Healthcare”. Georgia also has a statutory financial power of attorney. The term “durable” often appears in powers of attorneys. The term “durable” in this context refers to the fact that the authority that has been granted by the principal (the maker of the power of attorney) to their agent is durable and does not end if something happens to principal and they become incapacitated.
Powers of Attorneys are typically inexpensive and relatively simple and easy to create correctly. They can be a critically important element to your estate plan that can save your family time and money.
5 Things You Should Know About Powers of Attorney in Georgia
1. An individual must be competent in order to sign a power of attorney. Before an individual can sign a power of attorney they must be competent enough to understand what they are signing, why they are signing it, and they must be able to communicate that they understand what they are signing. This issue comes up often in my practice. When families begin to deal with the legal considerations involved with an incompetent family member the first thing they are told is that they need a power of attorney for their family member. However, if the person, has already lost their capacity it is not appropriate for them to sign a power of attorney document and other planning options should be utilized.
2. The maker of a power of attorney does not relinquish any rights by signing a power of attorney. The maker of the power of attorney, or principal, is simply authorizing an additional person to do the specific things listed in the document. This does not mean that the principal no longer has the authority to make decisions or transact business for himself. It also does not mean that the person selected as their agent by the principal becomes the primary decision maker. The principal remains the primary decision maker and the agent does not have the authority to take any action that the principal does not agree with. The authority granted to the agent in the power of attorney is also revocable at any time by the principal.
3. Properly drafted and executed powers of attorney can help your family avoid expensive and time consuming guardianship proceedings. If an individual becomes incapacitated before they sign powers of attorney the only way another individual can attain the proper authority to access their information and handle their affairs is by filing a Petition for Guardianship/Conservatorship in the Probate Court where the individual lives. Guardianship proceedings take 6-8 weeks, involve filing fees with the probate court, and potentially expensive legal fees.
4. An agent under a financial power of attorney is only authorized to do those things which are specifically listed in the document. If your financial power of attorney does not expressly state that your agent can do a particular thing for you then they do not have the authority to do it. Therefore, all financial powers of attorney are not created equal. It is important that your financial power of attorney is drafted by someone who is experienced with drafting these documents and how they are used. Many standard forms that can be found online do not list all of the authority and powers that your agent may need and therefore are not sufficient for planning purposes.
5. The authority granted in a power of authority cease as soon as the principal dies. When an individual passes away their powers of attorney are no longer legally valid. After the principal’s death the legal authority to handle affairs for the estate typically must come from the Probate Court.
Legal Disclaimer: This information has been provided for informational purposes only. It does not constitute legal advice. Proper legal advice can only be given based upon the specific facts and relevant law for each individual. Therefore, you should always seek appropriate counsel before acting upon the information contained herein.
