Power of Attorney

Power of Attorney (POA) is your legal permission for another adult to act on your behalf. The permission can be granted for a specific, limited purpose and period of time or for much broader purposes (such as handling all of your financial affairs) and an unquantified period of time (such as until your death). The first type is called a “conventional power of attorney,” and the second type is called a “durable power of attorney.”

The person authorizing the other to act is the “principal” or “grantor (of the power)”, and the one authorized to act is the “agent” or “attorney-in-fact” [AIF]. The attorney-in-fact acts “in the principal’s name” — for example, by signing the principal’s name to documents.

Although customarily drawn up by lawyers, some POAs may also be composed without legal assistance using forms purchased online or from an office supply company. A limited power of attorney form dealing strictly with motor vehicles is available free from the Tax Commissioner’s office.

Except for POAs dealing with real estate transactions, it is not a requirement to file a copy in the clerk’s office. Still, some people choose to do so based on their circumstances. When and if to file a power of attorney is an individual decision (except as noted above). If legal counsel is needed, it is best to consult an attorney; the employees of the Clerk of Court cannot provide such advice.

When would I want to give someone my power of attorney?
If you are going on an extended vacation and there are financial transactions that will need to be completed during that time (for instance, buying or selling a house, closing a mortgage, or buying or selling stock), it might be convenient or necessary to have an “attorney in fact” who can complete those transactions for you. Similar reasoning applies if you know you will be away on military duty.

Another important use for a power of attorney is if you become incapacitated. Establishing a power of attorney in advance allows you to plan for who will be making decisions that affect your legal, financial and/or medical well-being.

Who can I name as my attorney in fact?
The person who holds your power of attorney is called your attorney in fact. Your “attorney in fact,” in effect, steps into your shoes for the decisions you authorize that person to make. The attorney in fact must be an adult and must have the legal ability to enter into a contract. The person you choose can be (but does not have to be) a relative of yours.

The person you name as attorney in fact should be someone you trust. You should also have that person’s agreement to act as your attorney in fact before naming them, since acting as an attorney in fact is voluntary and no one can be required to serve as your attorney in fact.

The person who agrees to act as your attorney in fact will owe you a fiduciary duty, which means that your best interests must always be placed first while acting as your attorney in fact. The attorney in fact does not have to be compensated, but, especially if the duties are complicated or time consuming, you may wish to consider compensation.

What is a durable power of attorney?
A durable power of attorney is designed for use in case you become incapacitated (such as through illness or by accident) and are no longer able to make decisions for yourself.

The regular durable power of attorney becomes effective when it is signed and notarized. A “springing” durable power of attorney becomes effective on the day in the future that you become incapacitated. If you never become incapacitated, it does not become effective and your attorney in fact exercises no authority over you or your assets.

Both types of durable power of attorney remain valid and in effect until you specifically revoke or cancel the power of attorney or until you die (and your attorney in fact can still act on your behalf until actual notice of your death is received).

Both types of durable power of attorney allow your attorney in fact to deal with the financial and property matters you specify in the document. You may not want your attorney in fact to have authority over certain assets, such as a mutual fund, so you outline that requirement in the document.

What is a durable power of attorney for health care?
The Georgia Legislature has enacted a specific law dealing with this type of power of attorney. Code Sections 31-36-6, 31-36-9, and 31-36-10 of the Georgia “Durable Power of Attorney for Health Care Act” provide a specific form for durable power of attorney for health care decisions.

The purpose of this power of attorney is to give the person you designate (your agent) broad powers to make health care decisions for you, including power to require, consent to, or withdraw any type of personal care or medical treatment for any physical or mental condition and to admit to or discharge you from any hospital, home or other institutions; but not including psycho-surgery, sterilization, or involuntary hospitalization or treatment covered by Title 37 of the official code of Georgia annotated.

This form does not impose a duty on your agent to exercise granted powers; but, when a power is exercised, your agent will have to use due care to act for your benefit and in accordance with this form. A court can take away the powers of your agent if it finds the agent is not acting properly.

You may name co-agents and successor agents under this form, but you may not name a health care provider who may be directly or indirectly involved in rendering health care to you under this power. Unless you expressly limit the duration of this power in the manner provided below or until you revoke this power or a court acting on your behalf terminates it, your agent may exercise the powers given in the power throughout your lifetime, even after you become disabled, incapacitated, or incompetent.

The powers you give your agent, your right to revoke those powers, and the penalties for violating the law are explained more fully in Code Sections 31-36-6, 31-36-9, and 31-36-10 of the Georgia “Durable Power of Attorney for Health Care Act”. That act expressly permits the use of any different form of power of attorney you may desire. If there is anything about this form that you do not understand, you should ask a lawyer to explain it to you.

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