Not a week goes by that we don’t speak with someone who is moving to Georgia from another state and wants to know what if any legal planning they should update or what authority they should have to effectuate the move. Such moves typically fall into two categories: 1) Voluntary moves, such as professionals who move to Georgia for work, or retirees who move to Georgia to be close to their adult children and grandkids, and 2) Care-based moves of seniors who are moving to Georgia because their adult children live in Georgia and want to have Mom, Dad, or Aunt Sue closer to them. In this blog entry, we will look at both types of moves and offer advice on dos and don’ts.
1. Voluntary Moves:
It doesn’t matter where you live- you want to have a solid plan in place in the event that you are incapacitated and cannot make decisions about your health or your finances. While having a Living Will, Health Care Directive, or similar document from outside of Georgia is far better than having no such planning in place, we advise clients that having a Georgia Advance Directive for Health Care is a good idea, because care providers (whether hospitals, doctor’s offices, or other providers) here in Georgia are very accustomed to seeing these Georgia documents and they will be readily accepted and understood in ways that out-of-state documents may require more review or meet with more resistance by healthcare workers who do not know all the nuances of the out-of-state documents, or may simply not have the time to decipher all of them.
An out-of-state Financial Power of Attorney, while it should still be honored here in Georgia, is likely to meet with more resistance when presented at a Georgia bank or other financial institution. Here, we always advise clients that updating their Financial Powers of Attorney is a good idea.
What about Wills or Trusts from other states? Wills are governed by the law of the state in which they are executed, but if the Willmaker doesn’t own property in that state any longer, and doesn’t reside in that state anymore, there is often no basis to submit these Wills to the probate court (or equivalent court) in that state. If you plan to stay in Georgia for any length of time, especially if you will own property in Georgia or if you have minor children, then getting a Will in place is your chance to describe the disposition of those assets, or to name testamentary guardians to care for your children after your death. While you are at it, go ahead and have your Georgia estate planning attorney help you complete a Designation of Standby Guardian for your minor children, so that if you are incapacitated for up to four months, you can designate who will assume legal care of your children before having to apply for guardianship and conservatorship over your children if your incapacity lasts even longer.
In contrast, a Revocable Living Trust can often remain intact and not be replaced, especially if it already owns property. If a couple moves from Virginia to Georgia to retire, for example, and they already have a Revocable Living Trust that owns a beach house in North Carolina (lucky them!), and the Trust still meets all of their current estate & incapacity planning goals, then there may be no need to replace the Trust. Even so, having any “pour-over” Wills (Wills that pour everything back into your Trust) updated to be based on Georgia law is still a very good idea.
2: Care-Based Moves:
Increasingly, we speak with adult children in Georgia whose parents reside out of state and are in poor or failing health, such that the adult children want to relocate their parents or other aging relative(s) to Georgia to be closer to them. Here, the hands-down most important consideration is that the person actually WANTS to move. You can’t simply force your 88 year-old aunt to move from her apartment in Philadelphia because you think it is time for her to move into assisted living in Georgia. If she still has capacity to delegate these powers to you upon her move to Georgia, then as above, replacing her out-of-state Durable Power of Attorney and Health Care Directive is well-advised.
What if, as has sometimes happened, you decide that you don’t want to undergo the expense, delay, and stress of seeking guardianship or conservatorship, but you just decide to move Aunt Sue to Georgia without her consent (if she has capacity) or without any legal authority to do so? In either case, congratulations: You have just kidnapped someone. If you think we’re joking, we’re not. Moving the elderly out of their homes (often across state lines) is a growing problem given our rapidly aging population, and it is a concern that has been the basis of tens of thousands of bitter family disputes, lawsuits, and, yes, even arrests.
If you move Aunt Sue from Philadelphia with no legal authority to do so, but think she is too “out of it” to ever protest, you could be in for a very rude awakening. You can’t keep her in Georgia against her will, and if she ever insists that she be allowed to return home, you must respect her wishes- just as you should have done in the first place.
