Table of Contents
- Download a Georgia Power of Attorney Template
- Georgia Power of Attorney Requirements
- Examples of Duties Handled
- Changes in the Law
- Terms of the Document – Types of POAs
- Revoking a Power of Attorney
- Is this the same as a healthcare power of attorney?
1. Download a Georgia Power of Attorney Template
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2. Georgia Power of Attorney Requirements
In Georgia, a power of attorney is a document that gives a person, a financial institution, a trust, or a business, referred to as the agent, the legal power to act in place of another person, referred to as the principal. The document gives the agent the legal capacity in either a broad or limited sense to make business and financial decisions on the principal’s behalf as his or her proxy, in the case of the principal’s subsequent incapacity.
Without a power of attorney, the local probate court will have no choice but to appoint a conservator, also called a “financial guardian” in Georgia, to look over your affairs in the event of your incapacity. The power of attorney gives you the freedom to choose a person or entity that you trust far in advance of such a scenario.
The state provides a statutory form, which may or may not be used. If you choose to draft your own form, in accordance with OCGA § 10-6B, the Uniform Power of Attorney statute, it must “substantially reflect the language in the statutory form.” OCGA § 10-6B-5 dictates that in order to create an effective power of attorney in Georgia, your document must be signed by:
- The principal (or if the principal cannot sign for any reason, another person can sign in his or her place, while in the presence of, and under the direction of, the principal);
- At least one witness;
- and, a person authorized to administer oaths, such as a notary public.
The principal, anyone signing on the principal’s behalf, the witnesses, and the notary must be present when the document is signed. The official power of attorney form, found at OCGA § 10-6B-70, states that it is immediately in effect unless you indicate otherwise within the subsection titled “SPECIAL INSTRUCTIONS.”
Georgia determines incapacitation by meeting distinct criteria. The principal must be:
- unable to manage his or her financial affairs specifically due to an “impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance” (as determined by a physician or licensed psychologist); or
- missing, detained (including being incarcerated), or outside of the United States and unable to return (as determined by a lawyer, judge or “an appropriate government official).”
The law, however, allows you to determine your own set of standards to define your own incapacity, and this can be written into your personal power of attorney document.
Power of Attorney PDF Sample
The power of attorney (POA) sample below gives “Agent” Eddie V Bartee the authority to make financial decisions in the event that “Principal” Katherine J Wright is incapacitated. Eddie has the authority to handle issues dealing with Katherine’s property, stocks, insurance, and business.Georgia Power of Attorney (Financial)
3. Examples of Duties Handled
An agent’s duties are clearly defined by the statutory form found at OCGA § 10-6B-70, and include the management of:
- Real property
- Tangible personal property
- Stocks and bonds
- Commodities and options
- Banks and other financial institutions
- Operation of entity or business
- Insurance and annuities
- Estates, trusts, and other beneficial interests
- Claims and litigation
- Personal and family maintenance
- Benefits from governmental programs or civil or military service
- Retirement plans
The statutory form lists each of these as options that can be initialed if the principal wishes for the agent to look over such affairs. Alternatively, if he or she would like the agent to take care of all of these duties, they may simply initial the last option, “all preceding subjects.” This will give agent a blanket-like power to make all such decisions.
4. Changes in the Law
The statutes involving powers of attorney in Georgia had to be modified recently due to the risk-aversion tactics employed by many financial institutions. Many use a loophole in contract law to get around the statutory obligation of honoring a validly-executed power of attorney. Under the previous laws, a third party, such as a bank, could refuse to comply with a power of attorney because they did not consider themselves a party to the contract created by the agent and the principal. The contract law was clear, and agents had little to no recourse in such a situation.
After a modification in the statute, which became valid on July 1, 2017 (which also applies to pre-existing powers of attorney), third parties are required to rely on valid powers of attorney unless they have actual knowledge that the document is invalid, terminated, or has been revoked. There are even certain provisions that can force acceptance if the third party is resistant. For example, all powers of attorney must “substantially reflect the language in the statutory form” and be presented to, and sought to be used by, the third party. If the third party still refuses to accept the document, they have up to 7 days to request a certification from the agent (a notarized statement concerning the power of attorney, made under penalty of perjury) or an attorney’s opinion regarding the document.
Once the agent provides documentation, the third party has 5 business days in which to accept the power of attorney. If there is still an issue, the matter can be brought to court, where a judge can rule on the document’s validity.
5. Terms of the Document – Types of POAs
There are a few different types of power of attorney documents in Georgia. They are characterized by their express legal purpose and the time period that the document is meant to cover.
- General Power of Attorney: This document grants your agent broad legal authority over all your business and financial affairs, specifically those listed on the statutory form found at OCGA § 10-6B-70.
- Special Power of Attorney: This document allows your agent to make limited decisions, which must be specifically identified.
- Durable Power of Attorney: A durable power of attorney is a sub-type of the general and special variety. It continues even when the principal becomes incapacitated or unable to handle his or her own affairs.
- Springing Power of Attorney: This document is another sub-type of the first two types. It only comes into effect once a specific incident has occurred, such as the occasion of the principal’s incapacitation.
6. Revoking a Power of Attorney
When it is not in the principal’s best interest to use a person that he or she previously designated as an agent, or if the designated agent chooses not to accept the role, the power of attorney must be revoked or cancelled. You can do this at any time, regardless of your level of physical or mental incapacity, and in several ways:
- Shred the original document (copies do not count);
- Orally revoke the document and have a witness present to attest to the cancellation; or
- Draft and sign a revocation of power of attorney document terminating the agent’s authority.
7. Is this the same as a healthcare power of attorney?
In accordance with OCGA § 31-36-1, the health care power of attorney is considered a durable and springing power of attorney document drafted specifically with regard to health care decisions. It is put in place to ensure that the principal’s wishes are followed in the event of his or her incapacitation, or in any event where the principal is unable to speak for his or herself.
OCGA § 31-36-4 states that an agency may even extend beyond the principal’s death if the power of attorney specifies that the agent may make anatomical gifts, permit an autopsy, or oversee the disposition of the principal’s remains. In compliance with OCGA § 31-36-2 (b), it must be made clear that the scope of powers delegated are as broad as the comparable forms regarding financial matters.
Referred to as the “Georgia Advance Directive for Health Care,” there is an official form provided by the state that can be found at OCGA § 31-32-4. Either this official form can be used, or you can make a reasonable facsimile. The document must also be signed in the presence of two witnesses, who must sign the form as well, though notarization is not required.