A power of attorney creates an agency relationship between a principal (the person giving power) and an agent (the person receiving power), and is governed by O.C.G.A. § 10-6B-1 et seq. A good way to understand powers of attorney is to think of them like keys. They give you the power to deal with third parties the same way keys give you the ability to open locks. The purpose of this power is to help the person who gave you the power of attorney. A power of attorney, however, is not like a guardianship or conservatorship. It is a voluntary relationship and does not give the agent authority to overrule the principal.
The relation of principal and agent arises wherever one person, expressly or by implication, authorizes another to act for him or subsequently ratifies the acts of another in his behalf. An agency relationship authorizing actions that must be taken in writing must also be created in writing. In other words, almost every agency relationship relating to finances must have a written power of attorney or agency agreement. Powers of attorney created on or after July 1, 2017, are subject to the Georgia Power of Attorney Act, O.C.G.A. § 10-6B-1 et seq. Powers of attorney created prior to that date remain effective.
A conditional power of attorney (or “springing power”) is not effective until the specified event occurs. A power of attorney containing a conditional designation becomes effective when the specified event or contingency has occurred. If a springing power of attorney is triggered by a medical condition, O.C.G.A. § 10-6B-9(d) grants the person authorized to make a capacity determination authority to obtain access to the principal’s health care information and communicate with the principal’s health care provider. The statute also grants an agent with general authority over personal decisions authority under HIPAA to make payments for the provision of health care. O.C.G.A. § 10-6B-52(a)(5).
If an agent signs merely using the word “agent” then the agent may liable. The correct form identifies the principal for whom the agent is acting, such as
“John Smith, by Mary Smith as Attorney in Fact.”
Agents are required to keep regular accounts (records) with supporting documentation.
An agency relationship is revocable at the will of the principal, and unless the agency is coupled with an interest, it is automatically revoked upon the death of the principal or the agent.
In Georgia, all powers of attorney are presumed to be durable. O.C.G.A. § 10-6B-4. A written power of attorney, unless expressly providing otherwise, shall not be terminated by the incompetency or incapacity of the principal. The power to act as an attorney in fact for a principal who subsequently becomes incompetent or incapacitated shall remain in force until such time as a conservator or receiver shall be appointed for the principal or until some other judicial proceeding shall terminate the power.
Where an agent is authorized to take action, his or her authority is construed to include all necessary and usual means for effectually executing it.
Principals are bound by the actions of their agents unless the agent exceeds his or her authority. If the agent exceeds his or her authority, the principal must either ratify the entire transaction or repudiate the entire transaction. If the principal ratifies the transaction, it relates back to the original act; a ratification once made cannot be revoked.
A statutory form for Financial Power of Attorney appears at O.C.G.A. § 10-6B-70. Copies have the same effect as an original. O.C.G.A. § 10-6B-6(c).
If a power of attorney is used to convey land, generally it must be executed with the same formalities as a deed. See O.C.G.A. § 44-2-14 and § 44-2-15. See also Dodge v. American Freehold Land Mortg. Co. of London, 109 Ga. 394, 34 S.E. 672 (1899) and see Section 8.5 of the Georgia Title Standards (2018).
In LeCraw v. LeCraw, 261 Ga. 98 (1991), the Georgia Supreme Court construed a power of attorney and found that it authorized a continued pattern of gifting. After an audit, the IRS took the position that the power of attorney did not authorize gifting. It did, however, authorize making withdrawals from checking accounts, savings accounts, and did authorize the agent to “do any other thing or perform any other act, not limited to the foregoing, which I might do in person, it being intended that this shall be a general power of attorney.”
In finding that the power of attorney authorized gifting, the trial court found that Mrs. LeCraw’s agents were continuing a pattern of gifting designed to minimize her transfer tax liability. It also found that she knew about the gifting by her agents, voiced no objection and that she understood tax planning. After finding virtually no Georgia authority on the matter, the trial court found that the power of attorney authorized the gifts based on Mrs. LeCraw’s intent in creating the agency. On appeal, the Georgia Supreme Court agreed. The Supreme Court held:
Where, as here, the grantor of the power of attorney expresses in that document the desires that her business be transacted by her attorneys-in-fact and that the power of attorney be a general power, and the evidence is undisputed that the actions taken by the attorneys-in-fact, unobjected to by the grantor, continue the grantor’s practice of giving monetary gifts to the natural objects of her bounty and affection; that the exercise of the power to make gratuitous transfers by the attorneys-in-fact does not deplete the grantor of the assets necessary for her to live her accustomed life-style; and that the exercise of the power to make gifts to the natural objects of her bounty minimizes the estate transfer tax, a goal the grantor desired, we construe the general power of attorney executed by the grantor to include within it the power to make gratuitous transfers of property to the natural objects of the grantor’s bounty.
In Bradshaw v. McNeill, 228 Ga. App. 653 (1997), an agent was found to have exceeded her authority under a power of attorney. Carol Bradshaw was sued for fraud and undue influence relating to her conduct on behalf of her aunt. Dorothy Harris, the principal, added Bradshaw to a number of accounts after her husband died. Harris’ will devised her estate in equal shares to Bradshaw and McNeill. A month prior to Harris’ death, Bradshaw accompanied Harris to an attorney where the remainder interest in Harris’ home was deeded to Bradshaw. When Harris was admitted to a nursing home, Bradshaw withdrew funds in Harris’ non-joint bank accounts and deposited them into new joint accounts with Bradshaw. Harris died the following day.
The power of attorney Bradshaw used authorized her to close out checking or savings accounts and to open new accounts. However, it also specified that any such action was to be taken on behalf of Harris. In light of [prior law of agency in Chapter 6, now O.C.G.A. §§ 10-6-14; 10-6-5], which prohibit agents from using a power of attorney to benefit themselves to the detriment of their agent, the Court found that a jury question remained as to whether Bradshaw’s conduct was on behalf of Harris. The Court distinguished LeCraw where the principal had time and opportunity to ratify the agent’s conduct.
In Keith v. Alexander Underwriters Gen. Agency, 219 Ga. App. 36 (1995), the Court of Appeals examined a power of attorney which permitted an agent to operate an insurance business. In doing so, it rejected the argument that the agent had authority to file a pro se action on behalf of his principal.
“[A] formal power of attorney is subject to a strict construction,’ and ‘general terms in it are restricted to consistency with the controlling purpose . . .’ [cits.], yet . . . ‘the agent’s authority shall be construed to include all necessary and usual means for effectually executing it.’ LeCraw v. LeCraw, 261 Ga. 98, 99 (401 S.E.2d 697) (1991). The power of attorney was patently given to allow Latzak to operate the insurance agency. It contains no specific authority to accept service for her or to represent her in a suit against her. The general terms do not implicate such authority either; the power to make a response in a personal suit would be far beyond what would be needed to operate Keith’s insurance business.”
Georgia is not the only State to strictly construe powers of attorney. In Jones v. Kindred Healthcare Operating, Inc., 2008 Tenn. App. Lexis 486 (8/20/2008), the Tennessee Court of Appeals stated:
It is the general rule that a power of attorney must be strictly construed and strictly pursued. Under this rule, the instrument will be held to grant only those powers which are specified, and the agent may neither go beyond nor deviate from the power of attorney–in other words, the act done must be legally identical with that authorized to be done. For example, an attorney in fact has no power to make a gift of his principal’s property unless that power is expressly conferred on him by the instrument or unless such power arises as a necessary implication from the powers which are expressly conferred. Where the mode of exercising power is prescribed in the instrument in which it is created, there must be a strict compliance therewith in every substantial particular. Where power is conferred on an agent by a power of attorney, the meaning [*14] of general words in the instrument is restricted by the context and construed accordingly and the authority given is construed strictly, so as to exclude the exercise of any power that is not warranted either by the terms actually used or as a necessary means of executing with effect the authority given. Accordingly a general clause in a power of attorney given for a specific purpose, authorizing the agent to do “any and every act” in the principal’s name which he could do in person, must be construed to relate to the specific purpose, and does not constitute such agent a general agent.
In Nat’l Treasury Emples. Union v. Macon-Bibb County Hosp. Auth., 230 Ga. App. 448 (1998), the Court of Appeals rejected a claim that the Hospital, as agent, had a duty to know the contents of an insurance contract. The Court noted that the power of attorney in that case was a limited one. It did not purport to assign all of the principal’s rights and benefits. It simply had authority to complete any forms or releases required to obtain assigned insurance benefits. Since the hospital did not have a general power of attorney, it did not stand in the principal’s shoes.
In Life Care Ctrs of Am. v. Smith, 298 Ga. App. 739 (2009), the Court of Appeals held that a power of attorney for health care did not give an agent authority to execute an arbitration agreement. “Although Life Care argues that the power of attorney states that the power granted is intended to be as broad as possible, that broad grant of power is ‘so that your agent will have authority to make any decision you could make to obtain or terminate any type of health care. . . .’ We note that the agreement to arbitrate was optional and it is not contended in this case that in order for Petereit to be admitted to Life Care, Smith was required to sign the agreement to arbitrate.”
In Bethune v. Bethune (Georgia Court of Appeals A21A1659 3/11/2022), the Court stated in the context of a discovery dispute, that the Georgia Power of Attorney Act requires an agent, among other things, to “[a]ct loyally for the principal’s benefit[,]” OCGA § 10-6B-14(b)(1), to “[a]ct so as not to create a conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interest[,]” OCGA § 10-6B-14(b)(2), and to “[a]ct with the care, competence, and diligence ordinarily exercised by agents in similar circumstances[.]” OCGA § 10-6B-14(b)(3). The interrelationship
between the finances of the agent and the principal, both before and after the power of attorney became effective, pertains to issues such as the agent’s loyalty to the principal, the existence of conflicts of interest between the two, and the circumstances under which ordinary diligence is assessed. Our Supreme Court recognized that point in LeCraw v. LeCraw, 261 Ga. 98, 99-100 (401 SE2d 697) (1991), affirming the trial court ruling that a power of attorney authorized the agents to make certain monetary gifts because those gifts continued the principal’s earlier practice.
Powers of attorney terminate upon the death of the principal. After the principal’s death, probate is necessary to continue acting for the deceased principal.
Resources:
- Form: Georgia Statutory Power of Attorney
- IRS Form 2848
- Considering a financial caregiver? Know your options
- Planning for peace of mind: Social Security Advance Designation
- Thinking ahead: A guide for keeping your money safe as you age
- Choosing a trusted contact person can help you protect your money
- Establishing a trusted contact (FINRA)
- Managing someone else’s money (CFPB)
- Who Holds the Power? (TBA 2009)
