Finance
Instrument: Power of attorney (POA)
What is it for?
The power of attorney (POA) authorizes an “agent” to make decisions concerning the property of the “principal.” The agent will be able to make decisions and act with respect to the principal’s property whether or not the principal is able to act. The POA may not be used to grant an agent authority to make health care decisions for the principal.
What does it do?
The POA grants an agent the authority to make decisions about the principal’s property. In doing so, the agent has several general duties, including to not exceed the scope of authority in the POA, to act with due care and in good faith and consistent with the principal’s reasonable expectations for managing the principal’s property, and to avoid conflicts of interest, among others. Ga. Code Ann. § 10-6B-14.
In Georgia, a POA is considered durable unless it expressly provides that it is terminated by the incapacity of the principal. In other words, a POA is presumed to remain in effect even if the principal becomes incapacitated after executing it.
Third parties may rely on the agent’s authority pursuant to an attested POA, and they may also ask that the agent provide certain assurances, including a certification of the POA’s validity, although Georgia does not provide a statutory certification form. Ga. Code Ann. § 10-6B-19(d).
How does one make it?
A POA must be signed by the principal or by another individual in such principal’s presence at the principal’s express direction, attested by an adult witness other than the agent, and acknowledged by a notary public or certain other officials other than the agent. Ga. Code Ann. § 10-6B-5(a).
When does it come into effect?
The agent’s authority becomes effective when executed unless the principal provides in the POA document that it becomes effective at a future date or upon the occurrence of a future event or contingency. If the agent’s authority becomes effective upon the occurrence of a future event or contingency, the principal may authorize one or more persons to determine in a writing or other record that the event or contingency has occurred.
If the future event is the principal’s “incapacity,” and the POA does not specify who will make the incapacity determination, then that determination will be made by a physician or licensed psychologist. Ga. Code Ann. § 10-6B-9. Incapacity is defined as “an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance.” Ga. Code Ann. § 10-6B-2(5)(A).
How long does it last?
A POA generally ends when the principal dies or revokes it. Ga. Code Ann., § 10-6B-10. If the POA is not durable, then it ends upon the principal’s incapacity. A conservator appointed by a court only invalidates a POA if the court expressly provides. Ga. Code Ann. § 10-6B-8(b).
How does one end it?
A principal can revoke the POA, presumably by destroying the instrument and/or notifying the agent.
The execution of a subsequent POA does not revoke a previously executed POA unless the subsequent POA expressly states that the prior one is revoked. Ga. Code Ann. § 10-6B-10(f).
What does an example look like?
Georgia’s statutory POA form is available at Ga. Code Ann. § 10-6B-70. Emory Law School has also developed a fillable PDF POA form available here.
What else should one know?
Georgia’s POA is based on the Uniform Power of Attorney Act.
Last updated April 2021
Education
No information available at this time.
Health
Instrument: Advance directive for health care (ADHC)
What is it for?
An advance directive for health (ADHC) care allows an adult (the “declarant”) to appoint a “health care agent” to make decisions related to consent, refusal, or withdrawal of any type of health care and decisions related to autopsy, anatomical gifts, and final disposition of a declarant’s body when a declarant is unable or chooses not to make health care decisions for himself or herself.
What does it do?
The declarant’s health care agent has the same authority to make any health care decision that the declarant could make. That includes the authority to consent to and authorize or refuse, or to withhold or withdraw consent to, any and all types of medical care, treatment, or procedures relating to the physical or mental health of the declarant, including any medication program, surgical procedures, life-sustaining procedures, or provision of nourishment or hydration for the declarant, but not including psychosurgery, sterilization, or involuntary hospitalization. Ga. Code Ann. § 31-32-7(e)(1).
However, a health care agent may not make a particular health care decision different from or contrary to the declarant’s decision if the declarant is able to understand the general nature of the health care procedure being consented to or refused, as determined by the declarant’s attending physician based on such physician’s good faith judgment. Ga. Code Ann. § 31-32-7(b).
Health care providers must comply with a health care agent’s decisions for the declarant; otherwise, they must promptly inform the health care agent. The health care agent then becomes responsible for arranging for the declarant’s transfer to another health care provider. Ga. Code Ann. § 31-32-8(2).
The agent also becomes the declarant’s representative for all purposes of federal or state law related to privacy of medical records.
How does one make it?
The declarant must either sign the ADHC document or direct someone to sign it in the declarant’s presence requires the principal’s signature. It must also be signed by two adult witnesses, who do not have to be together or present when the declarant signs the advance directive for health care. Ga. Code Ann. § 31-32-5(c)(1).
When does it come into effect?
The agent’s authority becomes effective only if and when the declarant is unable or chooses not to make or communicate their own health care decisions.
How long does it last?
The ADHC generally lasts until the declarant either dies or revokes it. It also generally remains effective even if a guardian is appointed for the declarant, unless a court specifically orders otherwise.
How does one end it?
A declarant can revoke an ADHC in several ways, including either by executing a new ADHC, by destroying an existing ADHC, by writing a clear statement expressing the declarant’s intent to revoke the ADHC, or by orally expressing the intent to revoke the ADHC in the presence of a witness 18 years of age or older who confirms this in writing within 30 days. Importantly, an ADHC may be revoked at any time, regardless of the declarant’s capacity. Ga. Code Ann. § 31-32-6.
What does an example look like?
Georgia has a statutory ADHC form at Ga. Code Ann. § 31-32-4. A version of the ADHC form developed by the Georgia Department of Human Services Division of Aging Services is also available here.
What else should one know?
No physician, health care facility, or health care provider and no health care service plan, insurer issuing disability insurance, or self-insured employee welfare benefit plan may require any person to execute an advance directive for health care as a condition for being insured for or receiving health care services. Ga. Code Ann. § 31-32-12(a). Doing so is a misdemeanor. Ga. Code Ann. § 31-32-13(3).
Georgia law changed in 2007. The ADHC is an attempt to combine the best features of the Living Will and Durable Power of Attorney for Health Care (DPAHC) into one written document. Part One of Georgia’s ADHC form is what was formerly the DPAHC.
Last updated April 2021
General
No information available at this time.