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Who Needs A Power Of Attorney?


Article by Oren Ross

Photography by Oren Ross

How do you know when a power of attorney is necessary?

Effective estate planning in Georgia includes creating your last will and testament, designating beneficiaries, and creating a living will, a trust, and a power of attorney. To create a power of attorney – as almost every adult should – speak first to an Atlanta estate planning attorney.

What is a power of attorney or POA? In Georgia, it’s a legal document that authorizes your “agent” (or “attorney-in-fact”) to manage your personal, financial, and business affairs on your behalf if you should become suddenly and unexpectedly incapacitated or disabled.

A POA can give your agent the authority and right to conduct your business and make business and financial choices in your name. Your agent may have general decision-making powers or only limited responsibilities – that’s up to you.

When Should You Create a Power of Attorney?

Anyone in Georgia who is age 18 or above should seriously consider establishing a POA with the advice and guidance of an Atlanta estate planning lawyer. It’s important, because anyone might be unexpectedly, abruptly injured, disabled, or even fully incapacitated.

And that is when you need a POA. If you can’t make the financial decisions and choices that have to be made for your loved ones and for yourself, your POA authorizes your agent to make those choices to protect you and your long-term financial interests.

Your agent or attorney-in-fact may need to pay your bills, sell assets to pay for your medical expenses, carry out your banking transactions, make real estate decisions, and deal with your government or retirement benefits.

A durable power of attorney allows your financial affairs to continue being conducted even if you become disabled. Without a POA, your family may have to go to court and petition to have a guardian or a conservator named – a lengthy, costly, and emotionally exhausting process.

Who Should Be Your Agent?

Before you create a POA, you need to choose someone you deem trustworthy to manage your financial affairs when and if you can’t. You’ll basically be trusting that person with everything you own, so you cannot be too cautious.

Choose a person who’s qualified. He or she should be devoted to your long-term best interests, good with details and figures, have financial experience and knowledge, and be at ease working alongside bankers, accountants, lawyers, and healthcare providers.

Speak with your chosen agent about the POA and the agent’s obligations. You also should designate a successor agent in the event that the first agent you select resigns, becomes incapacitated, is no longer qualified to serve, has declined to serve, or passes away.

Depending on your POA’s specific terms and language, your agent will make key decisions and may have full access to your financial accounts, business affairs, and personal property.

What Does Georgia Law Require for Powers of Attorney?

Avoid using the pre-printed POA forms that are available online. Having a lawyer draft your POA will ensure that it’s compliant with state law, and it will allow you to grant your agent general decision-making authority or to limit that authority to specific obligations.

Georgia law requires powers of attorney to be signed by the “principal” (the person establishing the POA) and notarized before one or more witnesses who are of sound mind. Unlike some states, in Georgia, the notary may not also serve as a witness.

Georgia’s Uniform Power of Attorney Act of 2017 compels banks and other third parties to accept powers of attorney, so if you have a POA that was created in Georgia prior to July 1, 2017, see a Georgia estate planning lawyer right away to determine if it needs to be revised.

Are There Different Types of Powers of Attorney?

Georgia allows two types of powers of attorney. A “durable” POA becomes effective at the moment you sign it and survives your incapacity. A springing POA “springs” into effect only when you are incapacitated. In theory, a springing POA makes good sense.

However, a springing POA usually requires one or two doctors to certify that you can’t manage your financial affairs before your agent is authorized to make choices for you. Not all doctors are willing to do this, so for most clients, most lawyers in Georgia suggest a durable POA.

A POA is essential to any estate plan. Without a POA, there may be no quick way for your loved ones to handle your affairs or access your accounts if you become incapacitated.

Should You Also Have an “Agent” for Healthcare Decisions?

In Georgia, you may also create an “Advance Directive for Healthcare” along with your financial POA. An Advance Directive for Healthcare combines the concept of a living will and the need for a healthcare “agent” into a single legal document.

Like a living will, an Advance Directive for Healthcare deals with specific concerns regarding end-of-life healthcare treatments such as “heroic” measures to keep someone alive.

If you’re healthy, you may not need a POA or an Advance Directive – for the moment. But should you become incapacitated, without a power of attorney, your loved ones may have difficulty even paying your bills or cashing your checks.

How Will an Attorney Help You?

The right Atlanta estate planning attorney will make sure that your POA and your Advance Directive are easily understood, that nothing has been overlooked, and that you receive every opportunity to review your options carefully, thoughtfully, and thoroughly.

Your power of attorney dies when you do. After you pass away, the document is no longer valid, and your last will and testament will determine what happens to your assets. A POA is pertinent only to the decisions that must be made while you are living.

How Should You Store a Power of Attorney Document?

Do not presume that a power of attorney or Advance Directive should be kept in a safe deposit box or some other secure location. They shouldn’t. In a sudden crisis, if your agent must act on your behalf, he or she must be able to find your original estate planning documents immediately.

If your loved ones rely on you, establishing an estate plan that includes a power of attorney ensures that they will be cared for when you can’t and after you have passed away. Moving into the future, you should have personalized, reliable estate planning guidance and advice.

Protecting your family and their future starts by arranging to meet with the right estate planning attorney. It’s never too soon to set up a power of attorney or to begin planning your estate with the insights and advice of a good estate planning lawyer. Call Oren Ross & Associates at 678-250-4281, or find us online at