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