Last updated 2/28/2025
The Georgia Power of Attorney Act was enacted in 2017 (HB 221) and amended in 2018 (HB 897). It is codified at O.C.G.A. § 10-6B-1 et seq. The Act was effective as of July 1, 2017. It does not apply to powers of attorney executed prior to the effective date, but powers of attorney executed on and after the effective date are subject to the new law unless excepted pursuant to O.C.G.A. § 10-6B-3. Blake Melton, a Senior Wealth Strategist with Synovus Family Asset Management, authored a whitepaper on the new Act, Georgia’s Uniform Power of Attorney Act: Summary, Analysis, and Recommendations (June 5, 2017) (hereinafter “Melton 2017”). Melton supplemented his whitepaper after the Act was amended in The Georgia Power of Attorney Act: Summary, Analysis, and Recommendations (August 2018) (hereinafter “Melton 2018”). At one time, Melton’s whitepapers were available to members of the State Bar of Georgia’s Fiduciary law section through its website. See also Seal, Catherine (2012) “Power of Attorney: Convenient Contract or Dangerous Document?,” Marquette Elder’s Advisor: Vol. 11: Iss. 2, Article 5; Manns, F. Philip Jr. (2018) “Powers of Attorney under the Uniform Power of Attorney Act Including Reference to Virginia Law,” ACTEC Law Journal: Vol. 43: No. 2, Article 3; Vallario, Angela M. (2014) “The Uniform Power of Attorney Act: Not a One-Size-Fits-All Solution,” University of Baltimore Law Review: Vol. 43: Iss. 1, Article 3; F. Philip Manns Jr., Donative Hot-Powers Cases Under the Uniform Power of Attorney Act, 44 U. ARK. LITTLE ROCK L. REV. 339 (2022).
O.C.G.A. § 10-6B-1 states this “chapter shall be known and may be cited as the “Georgia Power of Attorney Act.””
O.C.G.A. § 10-6B-2 defines the following terms:
(1) “Agent” means a person granted authority to act in the place of an individual, whether denominated by such term, attorney-in-fact, or otherwise. Such term shall include a coagent, successor agent, and a person to which authority is delegated.
(2) “Durable” means not terminated by the principal’s incapacity.
(3) “Electronic” means relating to technology having electrical, digital, magnetic, wireless, optical, electromagnetic, or similar capabilities.
(3.1) “Gift” means a transfer of property for less than adequate consideration in money or money’s worth that is not a renunciation within the meaning of Code Section 53-1-20.
(4) “Good faith” means honesty in fact.
(5) “Incapacity” means inability of an individual to manage property or business affairs because the individual:
(A) Has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or
(B) Is:
(i) Missing;
(ii) Detained, including incarcerated in a penal system; or
(iii) Outside the United States and unable to return.
(6) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government or governmental subdivision, agency, or instrumentality, or any other legal or commercial entity.
(7) “Power of attorney” means a writing or other record that grants authority to a person to act in the place of an individual, whether or not such term is used.
(8) “Presently exercisable general power of appointment,” with respect to property or a property interest subject to a power of appointment, means power exercisable at the time in question to vest absolute ownership in the principal individually, the principal’s estate, the principal’s creditors, or the creditors of the principal’s estate. Such term shall include a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified period only after the occurrence of the specified event, the satisfaction of the ascertainable standard, or the passage of the specified period. Such term shall not include a power exercisable in a fiduciary capacity or only by will.
(9) “Principal” means an individual who grants authority to a person to act in the place of such individual.
(10) “Property” means anything that may be the subject of ownership, whether real or personal, or legal or equitable, or any interest or right therein and shall include digital assets and electronic communications, as such terms are defined in Code Section 53-13-2.
(11) “Record” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.
(12) “Sign” means, with present intent to authenticate or adopt a record, to execute or adopt a tangible symbol.
(13) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
(14) “Stocks and bonds” means stocks, bonds, mutual funds, and all other types of securities and financial instruments, whether held directly, indirectly, or in any other manner. Such term shall not include commodity futures contracts and call or put options on stocks or stock indexes.
Many sections within the Act begin with “unless the power of attorney provides otherwise.” This suggests that customization is allowed. Blake Melton wrote that some provisions expressly indicate whether they are mandatory or default. He cites Section 10-6B-14(a), which begins with “Notwithstanding provisions in the power of attorney,” as an example of a mandatory provision. See Melton 2017, p. 7. Melton then notes that, since the Act is mostly silent regarding whethe default provisions are mandatory, the best guidance is likely the Prefatory Note to the UPOAA which states: “While the Act contains safeguards for the protection of an incapacitated principal, the Act is primarily a set of default rules that preserve the principal’s freedom to choose both the extent of the agent’s authority and the principles to govern the agents conduct.”
Yes. O.C.G.A. § 10-6B-3 provides that the Act applies to all powers of Attorney executed on or after July 1, 2017 except:
(1) A power to the extent it is coupled with an interest in the subject of the power, including a power given to or for the benefit of a creditor in connection with a credit transaction;
(2) A power to make health care decisions, including, but not limited to, mental health care decisions;*
(3) Any delegation of voting, management, or similar rights related to the governance or administration of an entity or business, including, but not limited to, delegation of voting or management rights;
(4) A power created on a form prescribed by a government or governmental subdivision, agency, or instrumentality for a governmental purpose;
(5) A power created by a person other than an individual;
(6) A power that grants authority with respect to a single transaction or series of related transactions involving real estate;
(7) A power given to a transfer agent to facilitate a specific transfer or disposition of one or more identified stocks, bonds, or other financial instruments;
(8) A power authorizing a financial institution or broker-dealer, or an employee of the financial institution or broker-dealer, to act as agent for the account owner in executing trades or transfers of cash, securities, commodities, or other financial assets in the regular course of business;
(9) Powers of attorney provided for under Titles 19 and 33; and
(10) As set forth in Code Section 10-6B-81.
Language specifically limiting Chapter 6B to POAs after July 1, 2017 is found at O.C.G.A. § 10-6B-81(c). Older powers of attorney remain subject to Article 7 of Chapter 6. See Melton 2017, p. 6; see UPOAA Section 403.
*The language in subsection (2) was amended in 2022 (and then clarified in 2024) after passage of the Psychiatric Advance Directive Act.
A durable power of attorney is one that continues working after the principal loses capacity. In Georgia, all powers of attorney are presumed to be durable. O.C.G.A. § 10-6B-4 provides that a power of attorney created under this chapter shall be durable unless it expressly provides that it is terminated by the incapacity of the principal. See also O.C.G.A. § 10-6-36.
The Georgia Power of Attorney Act does not permit electronic execution. O.C.G.A. § 10-6B-5 provides:
(a) A power of attorney shall be:
(1) Signed by the principal or by another individual in such principal’s presence at the principal’s express direction;
(2) Attested in the presence of the principal by a competent witness who is not also named as an agent in the power of attorney being attested; and
(3) Attested as set forth in Code Section 44-2-15, in the presence of the principal, by an individual who is not a witness for purposes of paragraph (2) of this subsection and who is not also named as an agent in the power of attorney being attested.
(b) The individuals provided for in paragraphs (2) and (3) of subsection (a) of this Code section shall not be required to attest to the signature of any person other than the principal or the individual signing at the principal’s express direction.
See What makes a signature valid in Georgia.
During Covid, in 2020 and 2021, the requirement that a notary be physically present was waived pursuant to executive order.
O.C.G.A. § 10-6B-6(a) states that a power of attorney executed on or after July 1, 2017 is valid if it is executed in compliance with O.C.G.A. § 10-6B-5 (see previous section on how POAs are executed). The specific text says: “A power of attorney executed in this state on or after July 1, 2017, shall be valid if its execution complies with Code Section 10-6B-5.”
Of course, this presumes the principal had capacity at the time the POA was executed, which is (sort of) defined at O.C.G.A. § 10-6B-2(5); technically the act defines incapacity, not capacity. Generally, capacity to contract is necessary to execute a power of attorney, but Georgia law, in Kindred Nursing Centers Ltd. P’ship v. Chrzanowski, 338 Ga. App. 708 (2016), indicates that a person may have a lucid interval. In Kindred, the Court said:
“Further, even proof of a temporary loss of sanity or competency would create no presumption that it continued up to the time of execution of the contract, and the burden remains on the party alleging incapacity to show such incapacity at the very time of the transaction. O.C.G.A. § 13-3-24(a) provides that “The contract of an insane, a mentally ill, an intellectually disabled, or a mentally incompetent person who has never been adjudicated to be insane, mentally ill, intellectually disabled, or mentally incompetent to the extent that he is incapable of managing his estate as prescribed by this Code is not absolutely void but only voidable, except that a contract made by such person during a lucid interval is valid without ratification.”
As long as the POA was properly executed in the State of origin, Georgia will honor an out-of-state power of attorney. O.C.G.A. § 10-6B-6(b) states:
A power of attorney executed other than in this state shall be valid in this state if, when the power of attorney was executed, the execution complied with:
(1) The law of the jurisdiction that determines the meaning and effect of the power of attorney pursuant to Code Section 10-6B-7; or
(2) The requirements for a military power of attorney pursuant to 10 U.S.C. Section 1044b, in effect on February 1, 2018.
O.C.G.A. § 10-6B-7 provides:
The meaning and effect of a power of attorney shall be determined by the law of the jurisdiction indicated in the power of attorney and, in the absence of an indication of jurisdiction, by the law of the jurisdiction in which the power of attorney was executed.
Yes. O.C.G.A. § 10-6B-6(c) states: Except as otherwise provided by law other than this chapter, a photocopy or electronically transmitted copy of an original power of attorney shall have the same effect as the original; provided, however, that when recording a power of attorney in connection with a conveyance involving real property, a power of attorney shall be in a form that complies with Part 1 of Article 1 of Chapter 2 of Title 44.
First, the person executing a POA can nominate a conservator in the document. O.C.G.A. § 10-6B-8(a) states:
In a power of attorney, a principal may nominate a conservator of the principal’s estate for consideration by the court if protective proceedings for the principal’s estate are begun after the principal executes the power of attorney. Except for good cause shown or disqualification, the court shall make its appointment in accordance with the principal’s most recent nomination.
Second, unless the Court rules otherwise, the appointment of a conservator terminates the power of attorney. O.C.G.A. § 10-6B-8(b) and (c) provide:
(b) Unless expressly provided otherwise by the power of attorney or ordered otherwise by the court appointing the conservator, if, after a principal executes a power of attorney, a court appoints a conservator of the principal’s estate or other fiduciary charged with the management of some or all of the principal’s property, then the appointment of a conservator or other fiduciary shall terminate all or part of the power of attorney that relates to the matters within the scope of the conservatorship or management by another fiduciary. If such power of attorney does not wholly terminate, the agent shall be accountable to the conservator or other fiduciary as well as to the principal.
(c) If the court orders the power of attorney shall not terminate, the court may impose upon the power of attorney or agent such terms and conditions as it determines are in the best interest of the principal.
Third, a finding of incapacity under the POA Act does not create a presumption that a conservatorship is needed. O.C.G.A. § 10-6B-8(d) provides: A finding by a court that a principal is incapacitated for purposes of this chapter shall neither constitute a determination of nor create a presumption regarding such principal’s need for a guardian or conservator under Title 29.
In Georgia, the presumption is that it is effective immediately unless it states otherwise. O.C.G.A. § 10-6B-9(a) states: A power of attorney shall be effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency.
The POA may identify one or more persons to determine when a springing POA is effective. Subsection (b) provides that if a power of attorney becomes effective upon the occurrence of a future event or contingency, the principal, in the power of attorney, may authorize one or more persons to determine in a writing or other record that the event or contingency has occurred.
If the principal has not identified someone to state when the POA is effective, subsection (c) kicks in. If the trigger is a medical condition, then subsection (c)(1) states that written certification from a doctor or licensed psychologist can trigger it. For non-medical triggers, an attorney, judge or appropriate government official can trigger it. The specific text is:
(c) If a power of attorney becomes effective upon the principal’s incapacity and the principal has not authorized a person to determine whether the principal is incapacitated, or the person authorized is unable or unwilling to make the determination, the power of attorney shall become effective upon a certification in a writing or other record by:
(1) A physician or licensed psychologist determining that the principal has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or
(2) An attorney at law, a judge, or an appropriate governmental official determining that the principal is missing, detained, including incarcerated in a penal system, or is outside the United States and unable to return.
An individual with authority to trigger the POA has authority to access medical records. Subsection (d) provides:
A person authorized by the principal in the power of attorney to determine that the principal is incapacitated may act as the principal’s personal representative pursuant to the Health Insurance Portability and Accountability Act, Sections 1171 through 1179 of the Social Security Act, 42 U.S.C. Section 1320d, in effect on February 1, 2018, and applicable regulations in effect on February 1, 2018, to obtain access to the principal’s health care information and communicate with the principal’s health care provider.
Usually by doing stuff. O.C.G.A. § 10-6B-13 provides: Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance.
The most important rule is that Agents have a duty to act in the principal’s best interests. In Bethune v. Bethune, 363 Ga. App. 273 (2022), the Court construed this provision finding: “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).”
Specifically, O.C.G.A. § 10-6B-14 provides:
(a) Notwithstanding provisions in the power of attorney, an agent that has accepted:
(1) Appointment shall act in accordance with the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, in the principal’s best interest;
(2) Appointment shall act in good faith;
(3) Appointment shall act only within the scope of authority granted in the power of attorney; and
(4) Delegation of fiduciary powers under paragraph (7) of subsection (a) of Code Section 10-6B-40, shall have the same duties and liabilities as the principal with respect to such fiduciary powers.
(b) Except as otherwise provided in the power of attorney, an agent that has accepted appointment shall:
(1) Act loyally for the principal’s benefit;
(2) Act so as not to create a conflict of interest that impairs the agent’s ability to act impartially in the principal’s best interest;
(3) Act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances;
(4) Keep a record of all receipts, disbursements, and transactions made on behalf of the principal;
(5) Cooperate with a person that has authority to make health care decisions for the principal to carry out the principal’s reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal’s best interest; and
(6) Attempt to preserve the principal’s estate plan, to the extent actually known by the agent, if preserving such plan is consistent with the principal’s best interest based on all relevant factors, including:
(A) The value and nature of the principal’s property;
(B) The principal’s foreseeable obligations and need for maintenance;
(C) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes; and
(D) Eligibility for a benefit, a program, or assistance under a law or regulation.
(c) An agent that acts in good faith shall not be liable to any beneficiary of the principal’s estate plan for failure to preserve such plan.
(d) An agent that acts with care, competence, and diligence for the best interest of the principal shall not be liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.
(e) If an agent is selected by the principal because of special skills or expertise possessed by the agent or in reliance on the agent’s representation that the agent has special skills or expertise, the special skills or expertise shall be considered in determining whether the agent has acted with care, competence, and diligence under the circumstances.
(f) Absent a breach of duty to the principal, an agent shall not be liable if the value of the principal’s property declines.
(g) An agent that exercises authority to delegate to another person the authority granted by the principal or that engages another person on behalf of the principal shall not be liable for an act, error of judgment, or default of that person if the agent exercises care, competence, and diligence in selecting and monitoring the person.
(h) Except as otherwise provided in the power of attorney, an agent shall not be required to disclose receipts, disbursements, or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal, a guardian, a conservator, another fiduciary acting for the principal, a governmental agency having authority to protect the welfare of the principal, or, upon the death of the principal, by the personal representative or successor in interest of the principal’s estate. If so requested, within 30 days the agent shall comply with the request or provide a writing or other record substantiating why additional time is needed and shall comply with the request within an additional 30 days.
Unless the power of attorney is limited, most Agents have authority to conduct day-to-day business like paying bills, depositing checks, etc. O.C.G.A. § 10-6B-40(c) states that “if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in Code Sections 10-6B-43 through 10-6B-55.” See also O.C.G.A. § 10-6B-42. Referring to the descriptive general term is sufficient to grant this authority. O.C.G.A. § 10-6B-41(a). Reference to any of the code sections governing specific day-to-day powers (10-6B-43 through 10-6B-56) is sufficient to grant authority. See O.C.G.A. § 10-6B-41(b). These powers may be modified or customized. O.C.G.A. § 10-6B-41(c).
O.C.G.A. § 10-6B-42 provides:
Except as otherwise provided in the power of attorney, by executing a power of attorney that incorporates by reference a subject described in Code Sections 10-6B-43 through 10-6B-56 or that grants to an agent authority to do all acts that a principal could do pursuant to subsection (c) of Code Section 10-6B-40, a principal shall authorize the agent, with respect to that subject, to:
(1) Demand, receive, and obtain by litigation or otherwise, money or any other thing of value to which the principal is, may become, or claims to be entitled, and conserve, invest, disburse, or use anything so received or obtained for the purposes intended;
(2) Contract in any manner with any person, on terms agreeable to the agent, to accomplish a purpose of a transaction and perform, rescind, cancel, terminate, reform, restate, release, or modify the contract or another contract made by or on behalf of the principal;
(3) Execute, acknowledge, seal, deliver, file, or record any instrument or communication the agent considers desirable to accomplish a purpose of a transaction, including creating at any time a schedule listing some or all of the principal’s property and attaching it to the power of attorney;
(4) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to a claim existing in favor of or against the principal or intervene in litigation relating to the claim;
(5) Seek on the principal’s behalf the assistance of a court or other governmental agency to carry out an act authorized in the power of attorney;
(6) Engage, compensate, and discharge an attorney, accountant, discretionary investment manager, expert witness, or other advisor;
(7) Prepare, execute, and file a record, report, or other document to safeguard or promote the principal’s interest under a law or regulation;
(8) Communicate with any representative or employee of a government or governmental subdivision, agency, or instrumentality, on behalf of the principal;
(9) Except as otherwise provided under federal privacy laws, access communications intended for, and communicate on behalf of the principal, whether by mail, electronic transmission, telephone, or other means;
(10) Exercise all authority over digital assets for which an express grant by the principal is not required; and
(11) Do any lawful act with respect to the subject and all property related to the subject.
Melton’s whitepaper indicates that Section 10-6B-42 should not be overlooked. He then references comments to UPOAA § 203, which confirm an intent to grant very broad authority. Melton 2017, p. 6-7.
Unless the power of attorney says otherwise, granting an Agent authority over real property or incorporating O.C.G.A. § 10-6B-43 by reference authorizes the Agent to:
(1) Demand, buy, lease, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject an interest in real property or a right incident to real property;
(2) Sell; exchange; convey with or without covenants, representations, or warranties; quitclaim; release; surrender; retain title for security; encumber; partition; consent to partitioning; subject to an easement or covenant; subdivide; apply for zoning or other governmental permits; plat or consent to platting; develop; grant an option concerning; lease; sublease; contribute to an entity in exchange for an interest in that entity; or otherwise grant or dispose of an interest in real property or a right incident to real property;
(3) Pledge or mortgage an interest in real property or right incident to real property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
(4) Release, assign, satisfy, or enforce by litigation or otherwise a mortgage, deed of trust, conditional sale contract, encumbrance, lien, or other claim to real property which exists or is asserted;
(5) Manage or conserve an interest in real property or a right incident to real property owned or claimed to be owned by the principal, including:
(A) Insuring against liability or casualty or other loss;
(B) Obtaining or regaining possession of or protecting the interest or right by litigation or otherwise;
(C) Paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with such taxes or assessments; and
(D) Purchasing supplies, hiring assistance or labor, and making repairs or alterations to the real property;
(6) Use, develop, alter, replace, remove, erect, or install structures or other improvements upon real property in or incident to which the principal has, or claims to have, an interest or right;
(7) Participate in a reorganization with respect to real property or an entity that owns an interest in or right incident to real property and receive, and hold, and act with respect to stocks and bonds or other property received in a plan of reorganization, including:
(A) Selling or otherwise disposing of them;
(B) Exercising or selling an option, right of conversion, or similar right with respect to them; and
(C) Exercising any voting rights in person or by proxy;
(8) Change the form of title of an interest in or right incident to real property; and
(9) Dedicate to public use, with or without consideration, easements or other real property in which the principal has, or claims to have, an interest.
Unless the power of attorney says otherwise, granting an Agent authority over tangible personal property or incorporating O.C.G.A. § 10-6B-44 by reference authorizes the Agent to:
(1) Demand, buy, receive, accept as a gift or as security for an extension of credit, or otherwise acquire or reject ownership or possession of tangible personal property or an interest in tangible personal property;
(2) Sell; exchange; convey with or without covenants, representations, or warranties; quitclaim; release; surrender; create a security interest in; grant options concerning; lease; sublease; or otherwise dispose of tangible personal property or an interest in tangible personal property;
(3) Grant a security interest in tangible personal property or an interest in tangible personal property as security to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
(4) Release, assign, satisfy, or enforce by litigation or otherwise, a security interest, lien, or other claim on behalf of the principal, with respect to tangible personal property or an interest in tangible personal property;
(5) Manage or conserve tangible personal property or an interest in tangible personal property on behalf of the principal, including:
(A) Insuring against liability or casualty or other loss;
(B) Obtaining or regaining possession of or protecting the property or interest, by litigation or otherwise;
(C) Paying, assessing, compromising, or contesting taxes or assessments or applying for and receiving refunds in connection with such taxes or assessments;
(D) Moving the property from place to place;
(E) Storing the property for hire or on a gratuitous bailment; and
(F) Using and making repairs, alterations, or improvements to the property; and
(6) Change the form of title of an interest in tangible personal property.
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to stocks and bonds or incorporating O.C.G.A. § 10-6B-45 shall authorize the agent to:
(1) Buy, sell, and exchange stocks and bonds;
(2) Establish, continue, modify, or terminate an account with respect to stocks and bonds;
(3) Pledge stocks and bonds as security to borrow, pay, renew, or extend the time of payment of a debt of the principal;
(4) Receive certificates and other evidences of ownership with respect to stocks and bonds; and
(5) Exercise voting rights with respect to stocks and bonds in person or by proxy, enter into voting trusts, and consent to limitations on the right to vote.
Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to commodities and options or incorporating O.C.G.A. § 10-6B-46 by reference shall authorize the agent to:
(1) Buy, sell, exchange, assign, settle, and exercise commodity futures contracts and call or put options on stocks or stock indexes traded on a regulated option exchange; and
(2) Establish, continue, modify, and terminate option accounts.
Unless the power of attorney says otherwise, granting an Agent authority over banking and financial institutions or incorporating O.C.G.A. § 10-6B-47 by reference authorizes the Agent to
(1) Continue, modify, and terminate an account or other banking arrangement made by or on behalf of the principal;
(2) Establish, modify, and terminate an account or other banking arrangement with a bank, trust company, savings and loan association, credit union, thrift company, brokerage firm, or other financial institution selected by the agent;
(3) Contract for services available from a financial institution, including renting a safe deposit box or space in a vault;
(4) Withdraw, by check, order, electronic funds transfer, or otherwise, money or property of the principal deposited with or left in the custody of a financial institution;
(5) Receive statements of account, vouchers, notices, and similar documents from a financial institution and act with respect to them;
(6) Enter a safe deposit box or vault and withdraw or add to the contents;
(7) Borrow money and pledge as security personal property of the principal necessary to borrow money or pay, renew, or extend the time of payment of a debt of the principal or a debt guaranteed by the principal;
(8) Make, assign, draw, endorse, discount, guarantee, and negotiate promissory notes, checks, drafts, and other negotiable or nonnegotiable paper of the principal or payable to the principal or the principal’s order, transfer money, receive the cash or other proceeds of those transactions, and accept a draft drawn by a person upon the principal and pay it when due;
(9) Receive for the principal and act upon a sight draft, warehouse receipt, or other document of title, whether tangible or electronic, or other negotiable or nonnegotiable instrument;
(10) Apply for, receive, and use letters of credit, credit and debit cards, electronic transaction authorizations, and traveler’s checks from a financial institution and give an indemnity or other agreement in connection with letters of credit; and
(11) Consent to an extension of the time of payment with respect to commercial paper or a financial transaction with a financial institution.
Subject to the terms of a document or an agreement governing an entity or an entity ownership interest, and unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to operation of an entity or business or incorporating O.C.G.A. § 10-6B-48 by reference shall authorize the agent to:
(1) Operate, buy, sell, enlarge, reduce, or terminate an ownership interest;
(2) Perform a duty or discharge a liability and exercise in person or by proxy a right, power, privilege, or option that the principal has, may have, or claims to have;
(3) Enforce the terms of an ownership agreement;
(4) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to which the principal is a party because of an ownership interest;
(5) Exercise in person or by proxy, or enforce by litigation or otherwise, a right, power, privilege, or option the principal has or claims to have as the holder of stocks and bonds;
(6) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to which the principal is a party concerning stocks and bonds;
(7) With respect to an entity or business owned solely by the principal:
(A) Continue, modify, renegotiate, extend, and terminate a contract made by or on behalf of the principal with respect to the entity or business before execution of the power of attorney;
(B) Determine:
(i) The location of its operation;
(ii) The nature and extent of its business;
(iii) The methods of manufacturing, selling, merchandising, financing, accounting, and advertising employed in its operation;
(iv) The amount and types of insurance carried; and
(v) The mode of engaging, compensating, and dealing with its employees and accountants, attorneys, or other advisors;
(C) Change the name or form of organization under which the entity or business is operated and enter into an ownership agreement with other persons to take over all or part of the operation of the entity or business; and
(D) Demand and receive money due or claimed by the principal or on the principal’s behalf in the operation of the entity or business and control and disburse the money in the operation of the entity or business;
(8) Put additional capital into an entity or business in which the principal has an interest;
(9) Join in a plan of reorganization, consolidation, conversion, domestication, or merger of the entity or business;
(10) Sell or liquidate all or part of an entity or business;
(11) Establish the value of an entity or business under a buy-out agreement to which the principal is a party;
(12) Prepare, sign, file, and deliver reports, compilations of information, returns, or other papers with respect to an entity or business and make related payments;
(13) Pay, compromise, or contest taxes, assessments, fines, or penalties and perform any other act to protect the principal from illegal or unnecessary taxation, assessments, fines, or penalties, with respect to an entity or business, including attempts to recover, in any manner permitted by law, money paid before or after the execution of the power of attorney; and
(14) Exercise the principal’s fiduciary powers associated with an ownership interest.
Unless the power of attorney says otherwise, granting an Agent authority over insurance or incorporating O.C.G.A. § 10-6B-49 by reference authorizes the Agent to
(1) Continue, pay the premium or make a contribution on, modify, exchange, rescind, release, or terminate a contract procured by or on behalf of the principal which insures or provides an annuity to either the principal or another person, whether or not the principal is a beneficiary under the contract;
(2) Procure new, different, and additional contracts of insurance and annuities for the principal and the principal’s spouse, children, and other dependents, and select the amount, type of insurance or annuity, and mode of payment;
(3) Pay the premium or make a contribution on, modify, exchange, rescind, release, or terminate a contract of insurance or annuity procured by the agent;
(4) Apply for and receive a loan secured by a contract of insurance or annuity;
(5) Surrender and receive the cash surrender value on a contract of insurance or annuity;
(6) Exercise an election;
(7) Exercise investment powers available under a contract of insurance or annuity;
(8) Change the manner of paying premiums on a contract of insurance or annuity;
(9) Change or convert the type of insurance or annuity with respect to which the principal has or claims to have authority described in this Code section;
(10) Apply for and procure a benefit or assistance under a law or regulation to guarantee or pay premiums of a contract of insurance on the life of the principal;
(11) Collect, sell, assign, hypothecate, borrow against, or pledge the interest of the principal in a contract of insurance or annuity;
(12) Select the form and timing of the payment of proceeds from a contract of insurance or annuity; and
(13) Pay, from proceeds or otherwise, compromise or contest, and apply for refunds in connection with, a tax or assessment levied by a taxing authority with respect to a contract of insurance or annuity or its proceeds or liability accruing by reason of such tax or assessment.
(a) As used in this Code section 10-6B-50, the term “estate, trust, or other beneficial interest” means a trust, probate estate, guardianship, conservatorship, escrow, or custodianship or a fund from which the principal is, may become, or claims to be, entitled to a share or payment.
(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to estates, trusts, and other beneficial interests shall authorize the agent to:
(1) Accept, receive, receipt for, sell, assign, pledge, or exchange a share in or payment from an estate, trust, or other beneficial interest;
(2) Demand or obtain money or any other thing of value to which the principal is, may become, or claims to be entitled by reason of an estate, trust, or other beneficial interest, by litigation or otherwise;
(3) Exercise for the benefit of the principal a presently exercisable general power of appointment held by the principal;
(4) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to ascertain the meaning, validity, or effect of a deed, will, declaration of trust, or other instrument or transaction affecting the interest of the principal;
(5) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation to remove, substitute, or surcharge a fiduciary;
(6) Conserve, invest, disburse, or use anything received for an authorized purpose;
(7) Create, amend, and revoke a revocable trust so long as the terms of the trust only authorize distributions that would be allowable under the power of attorney if the principal held the trust assets outright and provide for the distribution of all trust assets to the principal’s estate upon the principal’s death;
(8) Transfer an interest of the principal in real property, stocks and bonds, accounts with financial institutions or securities intermediaries, insurance, annuities, and other property to the trustee of a revocable trust created by the principal as settlor or as described in paragraph (7) of this Code section; and
(9) With respect to a bona fide dispute, consent to a reduction in or modification of a share in or payment from an estate, trust, or other beneficial interest.
Unless the power of attorney says otherwise, granting an Agent authority over claims and litigation or incorporating O.C.G.A. § 10-6B-51 by reference authorizes the Agent to:
(1) Assert and maintain before a court or administrative agency a claim, claim for relief, cause of action, counterclaim, offset, recoupment, or defense, including an action to recover property or any other thing of value, recover damages sustained by the principal, eliminate or modify tax liability, or seek an injunction, specific performance, or other relief;
(2) Bring an action to determine adverse claims or intervene or otherwise participate in litigation;
(3) Seek an attachment, garnishment, order of arrest, or other preliminary, provisional, or intermediate relief and use an available procedure to effect or satisfy a judgment, order, or decree;
(4) Make or accept a tender, offer of judgment, or admission of facts, submit a controversy on an agreed statement of facts, consent to examination, and bind the principal in litigation;
(5) Submit to alternative dispute resolution, settle, and propose or accept a compromise;
(6) Waive the issuance and service of process upon the principal, accept service of process, appear for the principal, designate persons upon which process directed to the principal may be served, execute and file or deliver stipulations on the principal’s behalf, verify pleadings, seek appellate review, procure and give surety and indemnity bonds, contract and pay for the preparation and printing of records and briefs, receive, execute, and file or deliver a consent, waiver, release, confession of judgment, satisfaction of judgment, notice, agreement, or other instrument in connection with the prosecution, settlement, or defense of a claim or litigation;
(7) Act for the principal with respect to bankruptcy or insolvency, whether voluntary or involuntary, concerning the principal or some other person, or with respect to a reorganization, receivership, or application for the appointment of a receiver or trustee which affects an interest of the principal in property or any other thing of value;
(8) Pay a judgment, award, or order against the principal or a settlement made in connection with a claim or litigation; and
(9) Receive money or any other thing of value paid in settlement of or as proceeds of a claim or litigation.
(a) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to personal and family maintenance or incorporating Section 10-6B-52 by reference shall authorize the agent to:
(1) Perform the acts necessary to maintain the customary standard of living of the principal, the principal’s spouse, and the following individuals, whether living when the power of attorney is executed or later born:
(A) The principal’s minor children;
(B) The principal’s adult children who are pursuing a postsecondary school education and are under 25 years of age;
(C) The principal’s parents or the parents of the principal’s spouse, if the principal had established a pattern of such payments or indicated a clear intent to make such payments;
(D) The principal’s minor descendants who are not also the principal’s children, if the principal had established a pattern of such payments or indicated a clear intent to make such payments;
(E) The principal’s adult descendants who are under 25 years of age, not the principal’s children, and pursuing a postsecondary school education, if the principal had established a pattern of such payments or indicated a clear intent to make such payments; and
(F) Any other individuals legally entitled to be supported by the principal;
(2) Make periodic payments of child support and other family maintenance required by a court or governmental agency or an agreement to which the principal is a party;
(3) Provide living quarters for the individuals described in paragraph (1) of this subsection by:
(A) Purchase, lease, or other contract; or
(B) Paying the operating costs, including interest, amortization payments, repairs, improvements, and taxes, for premises owned by the principal or occupied by those individuals;
(4) Provide normal domestic help, usual vacations and travel expenses, and funds for shelter, clothing, food, appropriate education, including postsecondary and vocational education, and other current living costs for individuals described in paragraph (1) of this subsection to enable such individuals to maintain their customary standard of living;
(5) Pay expenses for necessary health care and custodial care on behalf of the individuals described in paragraph (1) of this subsection;
(6) Act as the principal’s personal representative pursuant to the Health Insurance Portability and Accountability Act, Sections 1171 through 1179 of the Social Security Act, 42 U.S.C. Section 1320d, in effect on February 1, 2018, and applicable regulations in effect on February 1, 2018, in making decisions related to the past, present, or future payment for the provision of health care consented to by the principal or anyone authorized under the laws of this state to consent to health care on behalf of the principal;
(7) Continue any provision made by the principal for automobiles or other means of transportation, including registering, licensing, insuring, and replacing them, for the individuals described in paragraph (1) of this subsection;
(8) Maintain credit and debit accounts for the convenience of the individuals described in paragraph (1) of this subsection and open new accounts; and
(9) Continue payments incidental to the membership or affiliation of the principal in a religious institution, club, society, order, or other organization or to continue contributions to those organizations.
(b) Authority with respect to personal and family maintenance shall be neither dependent upon, nor limited by, authority that an agent may or may not have with respect to gifts under this chapter.
(a) As used in this Code section 10-6B-53, the term “benefits from governmental programs or civil or military service” means any benefit, program, or assistance provided under a law or regulation, including Social Security, medicare, and Medicaid.
(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to benefits from governmental programs or civil or military service shall authorize the agent to:
(1) Execute vouchers in the name of the principal for allowances and reimbursements payable by the United States or a foreign government or by a state or political subdivision of a state to the principal, including allowances and reimbursements for transportation of the individuals described in paragraph (1) of subsection (a) of Code Section 10-6B-52, and for shipment of their household effects;
(2) Take possession and order the removal and shipment of property of the principal from a post, warehouse, depot, dock, or other place of storage or safekeeping, either governmental or private, and execute and deliver a release, voucher, receipt, bill of lading, shipping ticket, certificate, or other instrument for such purpose;
(3) Enroll in, apply for, select, reject, change, amend, or discontinue, on the principal’s behalf, a benefit or program;
(4) Prepare, file, and maintain a claim of the principal for a benefit or assistance, financial or otherwise, to which such principal may be entitled under a law or regulation;
(5) Initiate, participate in, submit to alternative dispute resolution, settle, oppose, or propose or accept a compromise with respect to litigation concerning any benefit or assistance the principal may be entitled to receive under a law or regulation; and
(6) Receive the financial proceeds of a claim described in paragraph (4) of this subsection and conserve, invest, disburse, or use for a lawful purpose anything so received.
Notwithstanding this Code section, some government agencies do not recognize powers of attorney. Social Security, for example, requires the agent to apply to become a representative payee.
(a) As used in this Code section 10-6B-54, the term “retirement plan” means a plan or account created by an employer, the principal, or another individual to provide retirement benefits or deferred compensation of which such principal is a participant, beneficiary, or owner, including a plan or account under the following sections of the Internal Revenue Code:
(1) An individual retirement account under Internal Revenue Code Section 408, 26 U.S.C. Section 408, in effect on February 1, 2018;
(2) A Roth individual retirement account under Internal Revenue Code Section 408A, 26 U.S.C. Section 408A, in effect on February 1, 2018;
(3) A deemed individual retirement account under Internal Revenue Code Section 408(q), 26 U.S.C. Section 408(q), in effect on February 1, 2018;
(4) An annuity or mutual fund custodial account under Internal Revenue Code Section 403(b), 26 U.S.C. Section 403(b), in effect on February 1, 2018;
(5) A pension, profit-sharing, stock bonus, or other retirement plan qualified under Internal Revenue Code Section 401(a), 26 U.S.C. Section 401(a), in effect on February 1, 2018;
(6) A plan under Internal Revenue Code Section 457(b), 26 U.S.C. Section 457(b), in effect on February 1, 2018; and
(7) A nonqualified deferred compensation plan under Internal Revenue Code Section 409A, 26 U.S.C. Section 409A, in effect on February 1, 2018.
(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to retirement plans shall authorize the agent to:
(1) Select the form and timing of payments under a retirement plan and withdraw benefits from a plan;
(2) Make a rollover, including a direct trustee-to-trustee rollover, of benefits from one retirement plan to another;
(3) Establish a retirement plan in the principal’s name;
(4) Make contributions to a retirement plan;
(5) Exercise investment powers available under a retirement plan; and
(6) Borrow from, sell assets to, or purchase assets from a retirement plan.
Unless the power of attorney says otherwise, granting an Agent authority over taxes or incorporating O.C.G.A. § 10-6B-55 by reference authorizes the Agent to:
(1) Prepare, sign, and file federal, state, local, and foreign income, gift, payroll, property, Federal Insurance Contributions Act, and other tax returns, claims for refunds, requests for extension of time, petitions regarding tax matters, and any other tax-related documents, including receipts, offers, waivers, consents, including consents and agreements under Internal Revenue Code Section 2032A, 26 U.S.C. Section 2032A, in effect on February 1, 2018, closing agreements, and any power of attorney required by the Internal Revenue Service or other taxing authority with respect to a tax year upon which the statute of limitations has not run and the following 25 tax years;
(2) Pay taxes due, collect refunds, post bonds, receive confidential information, and contest deficiencies determined by the Internal Revenue Service or other taxing authority;
(3) Exercise any election available to the principal under federal, state, local, or foreign tax law; and
(4) Act for the principal in all tax matters for all periods before the Internal Revenue Service, or other taxing authority.
Keep in mind that, notwithstanding this code section, The IRS requires Form 2848.
(a) As used in this Code section 10-6B-56, the term:
(1) “For the benefit of” means a gift to a trust, an account under the Uniform Transfers to Minors Act, a tuition savings account or prepaid tuition plan as defined under Internal Revenue Code Section 529, 26 U.S.C. Section 529, in effect on February 1, 2018, or an ABLE account as defined under Internal Revenue Code Section 529A, 26 U.S.C. Section 529A, in effect on February 1, 2018.
(2) “Gift splitting” means the election to have a gift treated as made one-half by the transferor and one-half by the spouse pursuant to Internal Revenue Code Section 2513, 26 U.S.C. Section 2513, in effect on February 1, 2018.
(3) “Section 2503(b) amount” means the federal gift tax exclusion under Internal Revenue Code Section 2503(b), 26 U.S.C. Section 2503(b), in effect on February 1, 2018, indexed for future years under the provisions in effect on February 1, 2018.
(b) Unless the power of attorney otherwise provides, language in a power of attorney granting general authority with respect to gifts shall authorize the agent only to:
(1) Make outright to, or for the benefit of, a person, a gift of any of the principal’s property, including by the exercise of a presently exercisable general power of appointment held by the principal, in the following amounts, without regard to whether the federal gift tax exclusion applies to the gift;
(A) If the principal is not married or is legally separated at the time of the gift, in an amount per donee not to exceed the Section 2503(b) amount; or
(B) If the principal is married and not legally separated at the time of the gift, in an amount per donee not to exceed twice the Section 2503(b) amount; and
(2) Consent to gift splitting if the principal has a spouse for purposes of gift splitting.
(c) An agent may make a gift of the principal’s property only as the agent determines is consistent with the principal’s objectives if actually known by the agent and, if unknown, as the agent determines is consistent with the principal’s best interest based on all relevant factors, including:
(1) The value and nature of the principal’s property;
(2) The principal’s foreseeable obligations and need for maintenance;
(3) Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes;
(4) Eligibility for a benefit, a program, or assistance under a law or regulation; and
(5) The principal’s personal history of making or joining in making gifts.
Yes. Changing the way a the principal owns things in a manner that alters the principal’s estate plan (“Hot Powers”) requires express authority in powers of attorney executed on or after July 1, 2017. This subsect is addressed in O.C.G.A. § 10-6B-40. Subsection (a) lists nine specific powers than an Agent does not have unless the principal expressly grants them. Even if the POA does not expressly grant hot power authority, Subsection (i) authorizes an Agent to petition the Court for authority to take such action if reasonable under the circumstances.
(a)
(1) An agent under a power of attorney may do the following on behalf of the principal or with the principal’s property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited by another agreement or instrument to which the authority or property is subject:
(A) Create, fund, amend, revoke, or terminate an inter vivos trust, other than a trust created pursuant to 42 U.S.C. Section 1396p(d)(4)(B) as provided under subsection (d) of Code Section 53-12-20;
(B) Make a gift;
(C) Create or change rights of survivorship;
(D) Create or change a beneficiary designation;
(E) Authorize another person to exercise authority granted under the power of attorney;
(F) Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan;
(G) Exercise fiduciary powers, other than those associated with an ownership interest as provided under paragraph (14) of Code Section 10-6B-48, that the principal has authority to delegate;
(H) Exercise authority over the content of electronic communications, as such term is defined in Code Section 53-13-2, sent or received by the principal; or
(I) Renounce an interest in property, including a power of appointment.
(2) A failure to grant authority under subparagraphs (1)(A) through (1)(D) of this subsection shall not prevent an agent from accessing information, depositing money, or withdrawing money, pursuant to the agent’s other authority and in accordance with the agent’s duties to the principal, from a revocable trust or an account or other banking arrangement with a bank or other financial institution.
Even if the POA grants broad hot powers, nonrelatives may not enrich themselves at the principal’s expense unless the power of attorney provides otherwise. Melton uses the following example: “Principal names daughter-in-law as agent and grants authority to gift (without any special instructions). Unless the power of attorney expressly states otherwise, the daughterin-law cannot make gifts to herself, change beneficiary designations for her benefit, etc.” Melton 2017, p.13.
(b) Notwithstanding a grant of authority:
(1) To do an act described in subsection (a) of this Code section, unless the power of attorney otherwise provides, an agent that is not an ancestor, spouse, or descendant of the principal, shall not exercise authority under a power of attorney to create in the agent, or in an individual to whom the agent owes a legal obligation of support, an interest in the principal’s property, whether by gift, right of survivorship, beneficiary designation, disclaimer, or otherwise; and
(2) To exercise a fiduciary power described in subparagraph (a)(1)(G) of this Code section, an agent may only exercise those fiduciary powers of the principal that are expressly and clearly identified in the power of attorney. In identifying such fiduciary powers, the principal shall specify the persons for which the principal acts as a fiduciary. If such persons are not individuals, the principal shall specify only the estate, trust, or other legal or commercial entity for which the principal acts as a fiduciary. With respect to such an entity, the principal shall not be required to specify additional persons such as beneficiaries, members, partners, or other similar persons.
Regarding day-to-day business authority, other than hot powers, a statement that the Agent can do all acts the principal could do is sufficient to give the Agent authority. See subsection (c) and see O.C.G.A. § 10-6B-42.
(c) Subject to subsections (a), (b), (d), and (e) of this Code section, if a power of attorney grants to an agent authority to do all acts that a principal could do, the agent has the general authority described in Code Sections 10-6B-43 through 10-6B-55.
Subsection (d) limits a general gifting power to the annual exclusion amount in IRC § 2503(b) unless the power of attorney provides otherwise. Subsection (e) provides for the broadest authority when powers overlap and subsection (f) authorizes an Agent to act with respect to what the principal owns now or acquires later regardless of where the property is located. Subsection (h) provides that the principal will benefit from an Agent’s acts and is bound by them.
(d) Unless the power of attorney otherwise provides, a grant of authority to make a gift shall be subject to Code Section 10-6B-56.
(e) Subject to subsections (a), (b), and (d) of this Code section, if the subjects over which authority is granted in a power of attorney are similar or overlap, the broadest authority shall control.
(f) Authority granted in a power of attorney is exercisable with respect to property that the principal has when the power of attorney is executed or acquires later, whether or not the property is located in this state and whether or not the authority is exercised or the power of attorney is executed in this state.
(g) An act performed by an agent pursuant to a power of attorney shall have the same effect and inures to the benefit of and binds the principal and the principal’s successors in interest as if the principal had performed the act.
(h) A power of attorney shall not authorize an agent to:
(1) Execute or revoke any will or codicil for the principal;
(2) Make an affidavit as to the personal knowledge of the principal; or
(3) Vote in any public election on behalf of the principal.
(i) An agent under a power of attorney that does not expressly grant the agent the authority to do an act described in paragraph (1) of subsection (a) of this Code section or Code Sections 10-6B-43 through 10-6B-55 may petition the court for authority to do such act that is reasonable under the circumstances.
Yes. O.C.G.A. § 10-6B-40(h) provides that a power of attorney shall not authorize an Agent to:
(1) Execute or revoke any will or codicil for the principal;
(2) Make an affidavit as to the personal knowledge of the principal; or
(3) Vote in any public election on behalf of the principal.
Yes. You do bad things and the Courts can rule that you are liable to the principal or to the principal’s successors. Specifically, O.C.G.A. § 10-6B-17 provides:
An agent that violates this chapter shall be liable to the principal or the principal’s successors in interest for the amount required to:
(1) Restore the value of the principal’s property to what it would have been had the violation not occurred; and
(2) Reimburse the principal or the principal’s successors in interest for the attorney’s fees and costs paid on the agent’s behalf.
For the most part, yes. There are, however, exceptions. O.C.G.A. § 10-6B-15 provides:
A provision in a power of attorney relieving an agent of liability for breach of duty shall be binding on the principal and the principal’s successors in interest except to the extent the provision:
(1) Relieves the agent of liability for breach of duty committed in bad faith, or with reckless indifference to the purposes of the power of attorney or the best interest of the principal; or
(2) Was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal.
The Act allows certain persons to petition the court to determine the meaning of a power of attorney or the Agent’s conduct and to provide appropriate relief. However, if the principal has capacity and moves to dismiss the case, then the Court must dismiss it. That would amount to a ratification of the Agent’s conduct by the principal. Assuming the principal does not move to dismiss or that the principal lacks capacity, if the Court rules that the Agent violated his or her duty, then the Court can order the Agent to pay the moving party’s attorney fees and expenses.
In Bethune v. Bethune, 363 Ga. App. 273 (2022), a non-Agent child of the principal filed an action questioning the Agent’s use of the principal’s bank funds and seeking a copy of the principal’s Will. The Court held that the bank funds were relevant on the Agent’s duty of loyalty, but that the Will was privileged. As the principal’s Agent, the Agent was allowed to invoke the attorney-client privilege on the principal’s behalf.
O.C.G.A. § 10-6B-16 provides:
(a) The following persons may petition a court to construe a power of attorney or review the agent’s conduct, and grant appropriate relief:
(1) The principal or the agent;
(2) A guardian, conservator, personal representative, or other fiduciary acting for the principal or for the principal’s estate;
(3) A person authorized to make health care decisions for the principal;
(4) The principal’s spouse, parent, or descendant;
(5) An individual who would qualify as a presumptive heir of the principal;
(6) A person named as a beneficiary to receive any property, benefit, or contractual right on the principal’s death or as a beneficiary of a trust created by or for the principal that has a financial interest in the principal’s estate;
(7) A governmental agency having authority to protect the welfare of the principal;
(8) The principal’s caregiver or another person that demonstrates sufficient interest in the principal’s welfare; and
(9) A person asked to accept the power of attorney.
(b) If a petition under this Code section was in the best interest of the principal and the agent admitted to a violation of this chapter or a court found that such agent violated this chapter, a court may order the principal to reimburse the persons, other than a governmental agency, who made such petition for part or all of the reasonable attorney’s fees and expenses of litigation incurred by such persons, provided that such fees and expenses were not imposed on the agent, were related to the agent’s violation of this chapter, and were reasonable in the context of the agent’s misconduct and the general circumstances of the principal.
(c) Upon motion by the principal, the court shall dismiss a petition filed under this Code section, unless the court finds that the principal lacks capacity to revoke the agent’s authority or the power of attorney.
In actions relating to powers of attorney covered by the Act, “[u]nless displaced by a provision of this chapter, the principles of law and equity supplement this chapter.” O.C.G.A. § 10-6B-21.
The Act provides that it does not supersede certain other laws. Specifically, O.C.G.A. § 10-6B-22 provides:
(a) This chapter shall not supersede any other law applicable to financial institutions or other entities, and the other law controls if inconsistent with this chapter.
(b) This chapter shall not supersede the Bank Secrecy Act of 1970, 31 U.S.C. Section 5311, in effect on February 1, 2018, and the corresponding regulations thereto, in effect on February 1, 2018.
Courts may also address other issues as necessary because the “remedies under this chapter shall not be exclusive and shall not abrogate any right or remedy under the laws of this state other than this chapter.” O.C.G.A. § 10-6B-23.
Yes, if it is attested (signed and witnessed in front of a potary public) and the third party has no knowledge that the POA is void, invalid or terminated. So long as they do so in good faith, third parties may rely on the POA as if it is genuine, valid and in force and that the agent has acted prperly. They may request and rely on an Agent’s certification regarding any fact relating to the POA or an attorney’s opinion regarding any legal issue relating to the POA. O.C.G.A. § 10-6B-19 provides:
(a) As used in this Code section, the term “attested power of attorney” means a power of attorney that was purportedly attested as set forth in Code Section 44-2-15.
(b) A person that in good faith accepts an attested power of attorney without actual knowledge that the signature is not genuine may rely upon the presumption under Code Section 10-6B-5 that the signature is genuine.
(c) A person that in good faith accepts an attested power of attorney without actual knowledge that such power of attorney is void, invalid, or terminated; that the purported agent’s authority is void, invalid, or terminated; or that the agent is exceeding or improperly exercising the agent’s authority may rely upon such power of attorney as if it were genuine, valid, and still in effect; the agent’s authority were genuine, valid, and still in effect; and the agent had not exceeded and had properly exercised the authority.
(d) A person that is asked to accept an attested power of attorney may request, and rely upon, without further investigation:
(1) An agent’s certification under penalty of perjury of any factual matter concerning the principal, agent, or such power of attorney;
(2) An English translation of such power of attorney if it contains, in whole or in part, language other than English; and
(3) An opinion of an attorney as to any matter of law concerning such power of attorney if the person making the request provides in a writing or other record the reason for the request.
(e) An English translation or an opinion of an attorney requested under this Code section shall be provided at the principal’s expense unless the request is made more than seven business days after an attested power of attorney is presented for acceptance.
(f) For purposes of this Code section, a person that conducts activities through employees shall be without actual knowledge of a fact relating to an attested power of attorney, a principal, or an agent if the employee conducting the transaction involving such power of attorney is without actual knowledge of the fact.
O.C.G.A. § 10-6B-19 applies retroactively to powers of attorney created prior to July 1, 2018. See O.C.G.A. § 10-6B-81(a).
Prior to July 1, 2017, Georgia law could not force a third party to accept a power of attorney. Documents executed prior to July 1, 2017 are still subject to the old rule. Beginning July 1, 2017, if a third party that impropery refuses to accept an attested statutory form power of attorney may be taken to Court. The Court may order the third party to accept the POA and may order the third party to pay your attoeny fees. O.C.G.A. § 10-6B-20 describes the circumstance allowing this to happen. First, subsection (a)(1) decribes that is meant by attested and subsection (a)(2) describes what constitutes a statutory form power of attorney.
(a) As used in this Code section, the term:
(1) “Attested statutory form power of attorney” means a statutory form power of attorney that was purportedly attested as set forth in Code Section 44-2-15.
(2) “Statutory form power of attorney” means a power of attorney:
(A) Substantially in the form set forth in Code Section 10-6B-70;
(B) That meets the requirements for a military power of attorney pursuant to 10 U.S.C. Section 1044b, in effect on February 1, 2018; or
(C) That substantially reflects the language in the form set forth in Code Section 10-6B-70.
There is nothing in the Act requiring powers of attorney to precisely match the statutory form, but the more the form varies, the less likely it is that a Court will order that it be accepted. If the form substantially reflect the language is the statutory form then it will be treated like a statutory form power of attorney. What constitutes substantially relecting that language is addressed in subsection (b).
(b) For purposes of:
(1) Subparagraph (a)(2)(C) of this Code section, a power of attorney shall be deemed to substantially reflect the language in the form set forth in Code Section 10-6B-70 if it:
(A) Grants or withholds authority for each of the descriptive terms for the subjects described in Code Sections 10-6B-43 through 10-6B-56, either by reference to the descriptive terms or citation to the specific Code sections;
(B) Grants or withholds authority for each of the powers described in subsection (a) of Code Section 10-6B-40, either by reference to the powers or citation to such subsection; and
(C) Contains a provision substantially similar to the following: “Any person, including my agent, may rely upon the validity of this power of attorney or a copy of it unless that person has actual knowledge it has terminated or is invalid.”; and
(2) Subparagraphs (1)(A) and (1)(B) of this subsection, a power of attorney shall be deemed to satisfy the requirement to grant authority with respect to a subject described in Code Sections 10-6B-43 through 10-6B-56 and a power described in subsection (a) of Code Section 10-6B-40, so long as it grants some authority with respect to such subject or power and regardless of whether it modifies the authority granted with respect to such subject or power under Code Sections 10-6B-43 through 10-6B-56 and subsection (a) of Code Section 10-6B-40.
Unless subsection (d) allows the third party to reject a power of attorney, subsection (c) requires third parties to either accept the power of attorney within 7 business days or request certification of an Agent or attorney. If they request certification, they have 5 business days after receipt of the certification to accept the power of attorney. They cannot require an additional or different form.
(c) Except as otherwise provided in subsection (d) of this Code section:
(1) A person shall either accept an attested statutory form power of attorney or request a certification, a translation, or an opinion of an attorney under subsection (d) of Code Section 10-6B-19 no later than seven business days after presentation of such power of attorney for acceptance;
(2) If a person requests a certification, a translation, or an opinion of an attorney under subsection (d) of Code Section 10-6B-19, the person shall accept the attested statutory form power of attorney no later than five business days after receipt of the certification, translation, or opinion of an attorney; and
(3) A person shall not require an additional or different form of the attested statutory form power of attorney for authority granted in the document presented.
(d) A person shall not be required to accept an attested statutory form power of attorney if:
(1) The person is not otherwise required to engage in a transaction with the principal in the same circumstances;
(2) Engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with federal law;
(3) The person has actual knowledge of the termination of the agent’s authority or of such power of attorney before exercise of such power of attorney;
(4) A request for a certification, a translation, or an opinion of an attorney under subsection (d) of Code Section 10-6B-19 is refused;
(5) The person in good faith believes that such power of attorney is not valid or that the agent does not have the authority to perform the act requested, whether or not a certification, a translation, or an opinion of an attorney under subsection (d) of Code Section 10-6B-19 has been requested or provided; or
(6) The person makes, or has actual knowledge that another person has made, a report to protective services as such term is defined in Code Section 30-5-1 stating a good faith belief that the principal may be subject to physical or financial abuse, neglect, exploitation, or abandonment by the agent or a person acting for or with the agent.
If the third party still refuses to accept the power of attorney after receiving certification, and if subsection (d) does not apply, then you can go to court to force the third party to accept the POA. If you win, the Court can order the third party to pay your attorneys fees and litigation expenses.
(e) A person that refuses to accept an attested statutory form power of attorney in violation of this Code section shall be subject to:
(1) A court order mandating acceptance of such power of attorney; and
(2) Liability for reasonable attorney’s fees and expenses of litigation incurred in any action or proceeding that confirms the validity of the power of attorney or mandates acceptance of such power of attorney.
(f) For purposes of this Code section, a person that conducts activities through employees shall be without actual knowledge of a fact relating to an attested statutory form power of attorney, a principal, or an agent if the employee conducting the transaction involving such power of attorney is without actual knowledge of the fact.
O.C.G.A. § 10-6B-10(a) provides that a POA terminates when:
(1) The principal dies;
(2) The principal becomes incapacitated, if the power of attorney specifically provides that it is not durable;
(3) The principal revokes the power of attorney;
(4) The principal revokes the agent’s authority or the agent resigns, becomes incapacitated, or dies and the power of attorney does not provide for another agent to act under such power of attorney;
(5) The power of attorney provides that it terminates; or
(6) The purpose of the power of attorney is accomplished.
In most cases, an Agent’s authority will be when the agent has notice that his or her authority is terminated. Subsections (b), (c)(d)(e) and (g) of O.C.G.A. § 10-6B-10 address this issue as follows:
(b) An agent’s authority shall terminate when:
(1) The agent resigns, becomes incapacitated, or dies;
(2) The principal revokes the agent’s authority;
(3) An action is filed for the dissolution or annulment of the agent’s marriage to the principal or their legal separation, unless the power of attorney otherwise provides; or
(4) The power of attorney terminates.
(c) Unless the power of attorney otherwise provides, an agent’s authority is exercisable until the authority terminates under subsection (b) of this Code section, notwithstanding a lapse of time since the execution of the power of attorney.
(d) Termination of an agent’s authority or of a power of attorney shall not be effective as to the agent or another person that, without actual knowledge of the termination, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, shall bind the principal and the principal’s successors in interest.
(e) Incapacity of the principal of a power of attorney that is not durable shall not revoke or terminate the power of attorney as to an agent or other person that, without actual knowledge of the incapacity, acts in good faith under the power of attorney. An act so performed, unless otherwise invalid or unenforceable, shall bind the principal and the principal’s successors in interest.
(g) Nothing in this Code section shall prevent a principal who notifies an agent of the revocation of the agent’s authority or power of attorney by certified mail or statutory overnight delivery from filing such notification and evidence of its receipt by the agent with the clerk of superior court in the county of the principal’s domicile for the purposes of establishing such agent had knowledge of the principal’s revocation.
President Lincoln ended slavery so no one can make you serve as Agent. O.C.G.A. § 10-6B-18 tells you how to resign:
Unless the power of attorney provides a different method for an agent’s resignation, an agent may resign by giving notice to the principal and, if the principal is incapacitated:
(1) To the conservator or guardian, if one has been appointed for the principal, and a coagent or successor agent; or
(2) If there is no person described in paragraph (1) of this Code section, to:
(A) The principal’s caregiver; or
(B) Another person reasonably believed by the agent to have sufficient interest in the principal’s welfare.
Yes. O.C.G.A. § 10-6B-11(a) says a principal may designate two or more persons to act as coagents. Unless the power of attorney otherwise provides, coagents shall exercise their authority independently.
Regarding successor agents, the principal may either designate successor agents or may identify someone to grant authority to designate successor agents. Subsection (b) provides:
(1) A principal may designate one or more successor agents to act if an agent resigns, dies, becomes incapacitated, is no longer qualified to serve, has declined to serve, or dies. A principal may grant authority to designate one or more successor agents to an agent or other person designated by name, office, or function. Unless the power of attorney otherwise provides, a successor agent shall:
(A) Have the same authority as that granted to the original agent; and
(B) Not act until all predecessor agents have resigned, become incapacitated, are no longer qualified to serve, have declined to serve, or died.
(2) An agent who has been incapacitated for more than six months shall not resume acting as an agent pursuant to the power of attorney that created the agency during which the agent became incapacitated.
Generally, an innocent agent is not liable for the improper actions of others, but if the agent knows about them, he or she must inform the principal. If the principal does not have capacity, then after discovering another agent’s wrong-doing the innocent agent must take action to safeguard the principal’s interest. O.C.G.A. § 10-6B-11 provides:
(c) Except as otherwise provided in the power of attorney and subsection (d) of this Code section, an agent that does not participate in or conceal a breach of fiduciary duty committed by another agent, including a predecessor agent, shall not be liable for the actions of the other agent.
(d) An agent that has actual knowledge of a breach or imminent breach of fiduciary duty by another agent shall notify the principal and, if the principal is incapacitated, take any action reasonably appropriate in the circumstances to safeguard the principal’s best interest. An agent that fails to notify the principal or take action as required by this subsection shall be liable for the reasonably foreseeable damages that could have been avoided if the agent had notified the principal or taken such action.
The default rule is no compensation, but expenses may be reimbursed. O.C.G.A. § 10-6B-12 provides: Unless the power of attorney otherwise provides, an agent shall not be entitled to compensation for services rendered. An agent shall be entitled to reasonable reimbursement of expenses incurred in performing the acts required by the principal under the power of attorney.
O.C.G.A. § 10-6-36 provides that 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.
O.C.G.A. § 10-6B-8(b) provides:
Unless expressly provided otherwise by the power of attorney or ordered otherwise by the court appointing the conservator, if, after a principal executes a power of attorney, a court appoints a conservator of the principal’s estate or other fiduciary charged with the management of some or all of the principal’s property, then the appointment of a conservator or other fiduciary shall terminate all or part of the power of attorney that relates to the matters within the scope of the conservatorship or management by another fiduciary. If such power of attorney does not wholly terminate, the agent shall be accountable to the conservator or other fiduciary as well as to the principal.
Execution of a new power of attorney does not automatically revoke an old one unless the new document says the old POA is revoked. O.C.G.A. § 10-6B-10(f) provides:
The execution of a power of attorney shall not revoke a power of attorney previously executed by the principal unless the subsequent power of attorney provides that the previous power of attorney shall be revoked or that all other powers of attorney are revoked.
Filing an action for divorce or seperation can terminate an agent’s authority. O.C.G.A. § 10-6B-10(b)(3) provides that an agent’s authority shall terminate when … An action is filed for the dissolution or annulment of the agent’s marriage to the principal or their legal separation, unless the power of attorney otherwise provides.
