A power of attorney is something you hope you never need, but eventually might. It assigns someone the right to make decisions on your behalf in some circumstances. For example, if you lose your faculties and can no longer make decisions or if you're out of the country and have a real estate transaction requiring action. In legalese, you are the principal in a power of attorney, and the person you appoint to take care of your affairs is your agent or attorney-in-fact.
Georgia requires that your power of attorney be in writing and that it conform with the format provided in Georgia Code Section 10-6-142. After you fill in your directives, you must sign the form and have it witnessed by two people. Your agent does not have to sign.
Georgia repealed its law allowing for health care powers of attorney effective July 2007, although powers of attorney created before that time are still viable and honored. However, if your agent is an ex-spouse, this invalidates your health care power of attorney. After 2007, Georgia requires that you create an advance directive for health care. The difference between the two documents is that you’re not just authorizing someone to make health care decisions on your behalf if you're incapacitated. A directive allows you to also specify guidelines for your agent and state your own wishes for potential treatment.
A financial power of attorney allows your agent to make transactions for you, including buying and selling assets on your behalf, incurring debt, writing checks and paying bills. You can give your agent as much or as little authority as you like by including various paragraphs contained in Georgia Code Section 10-6-142. You don't have to use all the paragraphs; you can tailor your POA to meet your needs. Under Georgia law, if you become incapacitated, you don't need a conservator or guardian if you have a financial power of attorney in place. However, if a conservator or guardian is appointed, this automatically rescinds your power of attorney. Your agent would have to petition the court to override this law for it to remain in effect.
Transactions Involving Real Estate
If your assets include real estate that you want your agent to be responsible for, Georgia has added requirements for your financial power of attorney. Your POA would not ordinarily have to be notarized. However, if you’re paving the way for real estate transactions, that changes. You must have your signature notarized, and the notary cannot be one of your witnesses. You must also file your power of attorney with the clerk of court in your county, which you would otherwise not have to do.
References & Resources
- MedLawPlus.com: Georgia Legal Information – Power of Attorney Statutes
- FindLaw: Georgia Durable Power of Attorney Laws
- Habersham County, Georgia: Power of Attorney
- Judicial Branch of Georgia: Alternatives to Guardianship and Conservatorship of Adults in Georgia
- Nathaniel M. Smith: Advance Directive for Health Care, Durable Power of Attorney, and Living Wills
- Justia US Law: 2010 Georgia Code
- Jupiterimages/BananaStock/Getty Images