In Georgia, a durable power of attorney for financial matters (POA) is an important legal document that everyone needs. While you can sign a POA form without help from an attorney, the only way to make certain that your Georgia power of attorney is valid — and that it does exactly what you intend — is to have a lawyer assist you in preparing it.
In a previous blog post, we provided an in-depth look at changes made in 2017 and 2018, when the legislature enacted the new Georgia Power of Attorney Act (GPOAA). Our blog post, Recent Changes in the Georgia Power of Attorney Act May Affect Your Estate Plan, contains extremely important information about the recent revisions in Georgia law for POAs. We encourage you to read the article, especially if you have not created or revised your power of attorney in the last two years. Otherwise, you may not benefit from protections in the new law.
The Georgia statutory provisions governing powers of attorney are complex and often hard to understand. The terms in a durable power of attorney for financial matters that complies with the statute also are somewhat complicated and can be very confusing. If you sign a form that purports to be a POA without reviewing it with a Georgia attorney, you cannot be certain that your document complies with the new law or is even valid in Georgia.
When an attorney helps you create your Georgia durable power of attorney for financial matters, you have peace of mind knowing that your legal document is valid and complies with all the requirements of the recent changes in state law. Your lawyer will carefully go through all the provisions with you, explaining the meaning and legal implications and making certain that your document accomplishes your wishes. Without that review and advice, you cannot be sure that your document accomplishes what you think it does.
Using a DIY form or online do-it-yourself service for any legal document is a serious mistake. The document may not even be legally valid in Georgia. Even if it is, a financial institution may reject it on presentation for a variety of reasons, because it doesn’t clearly comply with state law. Your family won’t find that out unless you become incapacitated and they try to act on your behalf using the POA — and at the point, it is too late for you to execute a valid Georgia POA. An individual who is incapacitated cannot validly create a durable power of attorney.
As hard as it is to think about the possibility of incapacity, anticipating future contingencies is exactly what estate planning is all about. In creating your POA and other estate plan documents, you protect yourself during your lifetime and protect your loved ones following your death. That protection must cover all realistic contingencies if it is going to be fully effective. Incapacity (temporary or permanent) is such a contingency.
Your durable power of attorney for finances also protects your family during your life, in the event you become incapacitated. It ensures that they can handle all your financial matters, such as paying bills, arranging for care, getting repairs done, and managing bank accounts, if you become unable to handle those matters yourself.
If you don’t have a valid POA, a family member will have to file a conservatorship petition in probate court, asking the court to appoint someone as your conservator and give them authority over your finances. Not only is that an unnecessary expense, but it can create a significant delay in your family gaining access to your finances, which can have adverse consequences for you and for them. There’s also a risk that the court will appoint someone you would not want to have that responsibility. Another possibility is that family members might disagree about who should manage your finances, which would result in a contested conservatorship proceeding — costing more money and creating a longer delay when you need care and help the most.
In addition to a POA, you also should have legal documents in place that designate an individual to act on your behalf regarding your personal care and medical decisions in the event you become incapacitated. In Georgia, those documents are called your advance directive for health care.
Advance directives accomplish for personal and medical decisions the same thing that your durable financial power of attorney accomplishes for financial matters. Advance directives are governed by state statute completely separate and different from the GPOAA.
Like a POA, an advance directive is somewhat complicated and can be confusing. When you have a lawyer help you create your directive, you make certain that the documents reflect your precise wishes about personal care and medical care, including end-of-life decisions. If you simply fill a form, you cannot be sure that your document meets Georgia legal requirements or that it accomplishes what you intend. Also like a POA, an advance directive cannot be executed after a person becomes incapacitated.
In our Cartersville estate planning practice at Asset Protection & Elder Law of Georgia, we focus on protecting our clients and their assets, whatever their unique circumstances may be. Powers of attorney and advance directives are an important part of our services.
We provide services to clients throughout the communities northwest of Atlanta, including in Bartow County, Cobb County, Cherokee County, Gordon County, Floyd County and Paulding County.