Georgia's General [Financial] Power of Attorney

Any Power of Attorney is a statement by one person [the 'principal'] allowing another person [the 'agent'] to take actions (or prevent them) with the same authority that the principal would have if he or she were present in person. For example, if a Husband were traveling out of the country he could leave a power of attorney with his Wife so that she could negotiate and sign a contract to sell their house in his absence. When she signs the form in his name, he is bound legally to perform under the contract. Other times when Powers of Attorney are typically needed are during periods of sickness and mental incompetence, as well as absence.

"Durable" in the name of Durable Power of Attorney means that it will continue in effect regardless of the medical condition of the Principal. In a power of attorney there is a "principal"- the one who gives the Power of attorney, the "agent" - the one who receives the authority. At common law, the authority of an agent was only as good as the principal. If the principal was in a coma, so was the agent from a legal standpoint. Durable means the authority continues until expiration occurs, it is revoked or otherwise terminated. Death stops the authority under a power of attorney because then the executor or administration of the estate is the decision maker.

You can have a financial power of attorney, one limited to a specific act (such as the sale of a house), or one which designates an agent for making medical decisions if you are not able.

Many states have forms for these durable powers of attorney. The Georgia durable power of attorney for health care is reproduced on this website as well. I encourage people to read, print it out, and use it. If you are from another state you would need to verify the format which your state requires.

Not everyone should use a general power of attorney, and not every power of attorney should give total authority. There are thousands of ways in which Powers of Attorney can be assembled. Because of the differences in structure of the text in each form, the Georgia legislature enacted a law which contains a form for general use. This form provides a 'smorgasbord' of choices which allows a person to designate one or more functions without giving all of them. By initializing a paragraph, an individual can authorize that specific power. Omitting other paragraphs allows the principal to retain control over other activities. Of course, in many cases the maker of this type of power of attorney gives each and every privilege to the person they designate. That is a personal choice - how much authority and who to name - this is a matter of trust.

Who do you name as your agent? Despite the term used "power of attorney," there is no need to involve an attorney-of-law as your agent. Instead, the agent should be a person who you know well. This person can be a member of your family, a friend, a business associate, or anyone of your choosing, however it should be someone who is willing and available when needed. When you select this person, you should advise him or her of your intentions and wishes. Very few agents have psychic powers and point of use is not a time for debate about what you would have wanted done.

Must the Power of Attorney be signed in the presence of a Notary Public? Only if you wish to give authority which relates to real property, stocks or investment documents, or certain other types of contracts. The document itself instructs when witnessing by a Notary Public is necessary.

How is the Power of Attorney terminated or stopped? When granting any power of this type, it is suggested that only one or a limited number of copies be signed. The Grantor can terminate the authority by notifying the Agent of the termination, but it is also desirable to recover the originals so that they can be destroyed. Obviously a small number is more desirable than a large group.

Why shouldn't everyone grant a general power of attorney, at all times, for general purposes? The main reason is that these documents are subject to misuse. Parents have been stripped of their homes and property because an adult child believes that he or she better understands what needs to be done. Prior to separating in a divorce situation, one spouse could use it to strip the other bare of assets. Agents have been known to make use of the Power of attorney in a personal emergency and 'borrow money' without the knowledge of the principal, or take other action which is not known to the principal. The documents is very useful but also potentially dangerous.

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