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What should I know about financial powers of attorney in Georgia?

Authored By: GeorgiaLegalAid.org
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Financial powers of attorney in Georgia Terms Resources

Financial powers of attorney in Georgia

What should I know? +

Contents


What is a financial power of attorney?

A financial power of attorney is a document that allows another person to legally take care of financial matters for you. The person appointed is called an agent. 

 

A financial power of attorney could be used in a variety of situations, including:

  • If there is a crisis and you unexpectedly cannot handle your finances, 

  • If you are going into surgery and expect to be unable to make financial decisions or act for a period of time,

  • If your health is declining and you worry there will come a time you cannot handle your own finances.

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When does agency go into effect?

The financial power of attorney starts as soon as you sign it, unless: 

  • You list a future date when you would like it to begin, or

  • You specify an event or circumstance when you would like it to start.

    • For example, you could say that you would like your financial power of attorney to start when your doctor determines that you can no longer make financial decisions for yourself.

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When does agency end?

If you know that you only want your financial power of attorney to last for a specific time, you can state the date that you want the agency to end. Otherwise, the financial power of attorney would remain in effect:

  • Until a conservator is appointed for you by the Probate Court (in the event that you become incapacitated); 

  • Until you revoke the financial power of attorney; or 

  • Until your death. Upon your death, the executor or administrator of your estate would handle the financial affairs of your estate. It is a good idea to have your financial power of attorney document recorded in the deed records in the county in which you live.

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What are my rights and responsibilities with a financial power of attorney?

You have the right to limit the power of attorney. You can choose specific powers that you would like your agent to have or not have. For example, you could allow your agent write checks to pay bills but not sell your property. 

 

Even if the financial power of attorney is in effect, you still have the right to legally make decisions about your finances. Your agent must follow your directions.

 

You have the right to start and end a financial power of attorney at any time. 

 

In order to sign a financial power of attorney, you must have the capacity to understand a contract. This includes: 

  • the ability to understand the document you sign and 

  • the consequences of signing the document. 

 

If you are under a guardianship or conservatorship, any financial power of attorney that you sign would be void while you are under that guardianship or conservatorship.

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What are the rights and responsibilities of an agent?

Your agent may act on your behalf, but your agent:

  • Can only do the things you’ve given them express permission to do, and 

  • Must always act in your best interests. 

Some examples of what your agent can do if you authorize them:

  • Pay your monthly bills for you

  • Gain access to your bank accounts and deposit/redraw money from your accounts

  • Buy, sell, or lease your home or other property

  • Buy, sell, or lease any personal property (e.g. your car, furniture, jewelry, etc.)

  • Borrow money or take out loans for you

  • Prepare and file tax returns and necessary social security or unemployment insurance documentation

  • Buy or sell your automobile

  • Gain access to your safe deposit box

  • Hire, and pay for, a professional for you (e.g. a lawyer, doctor, accountant, etc.)

  • File any lawsuit on your behalf and defend against any lawsuits filed against you

  • Buy and/or sell any stocks and bonds

 

Your agent CANNOT:

  • Use your money for their own bills, expenses or enjoyment

  • Act in any way that is against your interest

  • Pay themself a fee unless you have expressly authorized it

  • Ignore your instructions

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What can I do? +

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How can I choose an agent?

It is extremely important that you can thoroughly trust the person you have named as your agent for your financial power of attorney. You should never feel pressured by anyone into signing a financial power of attorney, naming an agent or giving your agent a specific power. The authority you give your agent can have a major impact on you, and you shouldn’t feel pressured to make a decision.. Your agent (depending on the powers you assign to him) could: 

  • sell your house, 

  • withdraw money from your accounts, or 

  • take a loan out in your name including a mortgage on your home. 

 

Unlike a conservator or guardian, a person acting with a power of attorney does not have to answer to a court. There is no formal oversight regarding decisions that your agent makes.

 

Your agent should be someone with whom you feel confident discussing your wishes. Your agent does not need to agree with all your wishes, but she has a fiduciary duty to carry out your requests. For example, it would violate your agent's fiduciary duty to take out a mortgage on your property if you do not want your home mortgaged.

 

It is best to appoint only one person to be your agent. You can decide to appoint two people to act jointly as your agents. However, if your two agents disagree and are unable to reach an agreement on how to carry out your wishes, this could cause problems and expense for you. If these are family members, it can result in family conflict. If you are worried about having someone in place if something should happen to your agent, you could appoint one agent initially, and then appoint a Successor agent who would take over as your agent if your first agent could no longer serve as your agent.

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How do I make a financial power of attorney document?

You can find a sample financial power of attorney form on the Georgia Division of Aging Services website. 

 

To be valid, the form must be:

  • Signed by you or by someone you explicitly ask to sign for you,

  • Signed by one or more competent witnesses. A competent witness is of sound mind and at least 14 years old.

    • The witnesses must swear that you signed the form in front of them and each other,

  • All signatures must be done in front of a notary,

  • The power of attorney document must be notarized.

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How can I revoke a financial power of attorney?

At some point you may wish to end, or revoke, a financial power of attorney. You might want to revoke if:

  • You are once again able to handle your own finances, or

  • You think your agent is mishandling your finances.

To revoke the financial power of attorney, you should:

  • Date and sign a document that states that you are revoking the financial power of attorney. Include the date of the financial power of attorney and the name of the agent. This document should be witnessed and notarized.

  • Make several copies of the revocation.

  • File the original signed revocation in the deed records at the county courthouse.

  • Send your agent a copy of the revocation via certified mail with return receipt requested. This is very important because the revocation does not become effective until your agent receives it. Keep the returned certified mail receipt with your copy of the revocation.

  • Give a copy of the revocation to all parties who have been dealing with your agent or would have reason to deal with your agent. These parties could include, among others, your bank, investment companies, and real estate agent.

 

If your agent continues to act under the revoked financial power of attorney you should contact an attorney.

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Terms

 

This section gives the definitions for words that you will often see in connection with a financial power of attorney.

  • Administrator: the person appointed by the probate court to handle the affairs of a deceased person who did not leave a Last Will and Testament.
  • Agent: one who is authorized to act for or in place of another person. Your "agent" is the person that you appoint to handle your affairs and make decisions on your behalf. Another term for agent is attorney-in-fact.
  • Agent's Powers: acts that an agent is authorized to perform by the Power of Attorney document.
  • Broad Powers: General authority given to an agent over all of the Principal's financial affairs.
  • Conservator: a person appointed by a court to handle the property and finances of an incompetent person.
  • Durable Power of Attorney: a Power of Attorney that remains in effect even after the Principal becomes incapacitated.
  • Executor: The person named in a Last Will and Testament to handle the affairs of a deceased person.
  • Fiduciary: one who owes to another the duties of good faith, trust, confidence, and candor in acting for the benefit of another in the scope of their relationship. When you appoint an agent, your agent becomes your "Fiduciary".
  • Fiduciary Duty: the agent's duty to act with the highest degree of honesty and loyalty toward the Principal and in the best interests of the principal.
  • Financial Exploitation: unauthorized use of a person's finances by another. Financial exploitation is a form of elder abuse.
  • Financial Institution: a business, organization or other entity that manages money, credit, or capital, such as a bank, credit union, securities broker, or investment company.
  • Financial Power of Attorney: a type of Power of Attorney granting an agent the power to handle some or all financial matters for the Principal.
  • Guardian: a person appointed by a court to make sure an incompetent person's basic personal needs such as food shelter, clothing, medical care and treatrment, are met.
  • Medical or Health Care Power of Attorney: a type of Power of Attorney granting an agent the authority to make decisions relating to health care or medical care and treatment when the Principal is not able to do so.
  • Power of Attorney: a document that grants someone authority to act as agent or attorney-in-fact for the person signing the document (the Principal).
  • Principal: one who authorizes another to act on his or her behalf as an agent. You would be the "Principal" who gives authority to your "agent" using the Power of Attorney.
  • Revoke/Revocation: the act of terminating or canceling the Power of Attorney and ending the authority of the agent to act for the Principal and can be done at any tome for any reason
  • Successor agent: a person who is named in a Power of Attorney document to take over if the first agent is not able or is unwilling to serve as agent.
  • The Power of Attorney Document: The State of Georgia has a Georgia Statutory Form for financial power of attorney that is set out in the Georgia law at O.C.G.A. §10-6B-70.

Resources

  • Get instructions and find the financial power of attorney form from the Georgia Division of Aging Services (this links to a PDF that may not be fully accessible).

 

Legal Help

  • For help in Fulton, Clayton, Cobb, Gwinnett, or DeKalb County, contact Atlanta Legal Aid. Fill out the Atlanta Legal Aid online intake application or call 404-524-5811 (main line), 404-657-9915 (GA Senior Legal Hotline), to see if you qualify for legal assistance.
  • If you live in any other Georgia county, contact the Georgia Legal Services Program for help. Access the GLSP online intake application or call 1-833-457-7529 to see if you qualify for legal assistance.
Last Review and Update: Oct 22, 2020