A Georgia durable statutory power of attorney form grants someone (called the “agent” or “attorney-in-fact”) the legal authority to make decisions and act on your behalf even if you (the principal) become incapacitated and legally can’t make your own decisions.
This form is sometimes called a durable power of attorney for finances and is used for personal, financial, and business matters. To grant durable power over health care decisions, you need a medical power of attorney.
Laws
Power of attorney forms in the state are durable by default, so they will continue to be effective even if the principal becomes incapacitated unless otherwise stated in the form.
- Statute: Title 10, Chapter 6B (Georgia Power of Attorney Act).
- Presumed Durable: Yes (§ 10-6B-4).
- Signing Requirements: The signatures of the principal and one witness (can’t be the agent) are required (§ 10-6B-5).
- Notarization: The document must be signed before a notary public.
- Statutory Form: Yes (§ 10-6B-70).
Definitions
Durable – “Durable” means it remains valid despite the principal’s incapacity (§ 10-6B-2(2)).
Power of Attorney – A power of attorney is an instrument, written or otherwise recorded, that authorizes another person to act for an individual, regardless of whether the specific term “power of attorney” is used (§ 10-6B-2(7)).
Specific Powers and Limitations
Restrictions on Gifts and Transfers
Ga. Code § 10-6B-56 allows the agent to make certain gifts on the principal’s behalf but with limitations.
Types of Gifts:
- Gifts “for the benefit of” a person: This includes placing money in trusts, accounts for minors, tuition plans, or ABLE accounts.
- Outright gifts to individuals: These are direct transfers of ownership to another person.
- Consent to splitting gifts made by the principal’s spouse: The agent can consent to this for tax purposes.
Restrictions on Amounts:
- Unmarried principal: Gifts cannot exceed the annual federal gift tax exclusion amount (Section 2503(b) amount) per recipient.
- Married principal: Gifts can be up to twice the annual exclusion amount per recipient.
Considerations:
- Value and type of assets.
- The principal’s resources for future living expenses.
- Minimizing taxes (income, estate, etc.) for the principal.
- Maintaining eligibility for government benefits.
- The principal’s past gifting patterns.
Agent’s Authority Limitations
A DPOA does not automatically grant an agent broad authority to do everything the principal could do. Some specific actions require the document to grant permission for the agent to undertake them explicitly, such as trust management, survival rights, sub-delegation, fiduciary powers, or renouncing property interests (Ga. Code § 10-6B-40).
The agent cannot use their authority for their own personal gain or for someone they are financially responsible for (unless the principal is a close relative). When exercising any fiduciary powers, the DPOA must clearly specify which specific powers are granted and for whom the principal holds those powers (e.g., a trust beneficiary).
A DPOA will never authorize an agent to:
- Create or change a will.
- Make a sworn statement based on the personal knowledge of the principal.
- Vote in elections on the principal’s behalf.
Revocation and Termination
According to Ga. Code § 10-6B-10, a DPOA terminates under several circumstances, ending the agent’s authority to act on the principal’s behalf:
- Upon the principal’s passing.
- When the principal revokes it.
- Upon a specified termination date written into the document.
- When it achieves the specific purpose for which it was created.
- When the principal revokes the agent’s authority, or the agent dies, becomes incapacitated, or resigns, and there’s no alternate agent named.
The agent’s authority might end if they are the principal’s spouse and their marriage dissolves, or they legally separate, but the document can specify otherwise.
Even after the DPOA terminates, actions taken by the agent in good faith and without knowledge of the termination remain valid and binding on the principal. While not mandatory, the principal can file a formal revocation notice with the court to ensure the agent is aware of the document’s termination.
Safekeeping and Registration
There is no central statewide registry for durable powers of attorney in Georgia. This means you don’t need to file your form with any government agency for it to be valid.
You should keep the original signed document in a secure location accessible to you but also to someone you trust, like a family member or close friend. Make certified copies and distribute them to the agent and any financial institutions the agent might need to interact with.
Additional Resources
- State Bar: While it doesn’t have a dedicated page on DPOAs, it offers other useful legal resources.
- Legal Services Program: Provides legal aid to low-income Georgians.
