Serving as agent under a power of attorney is an important job. Don’t accept the job unless you believe you can do it correctly. If you accept the job, here are some thoughts on what’s next:
- Read the power of attorney. In Georgia, a power of attorney only allows you to do those tasks that are authrozied by your agent. If the document withholds certain powers, you don’t have those powers. If you’re not sure whether you have authority to take action, speak with a lawyer.
- Speak with the person who appointed you (the Principal). Ask him or her what they want you to do and what they don’t want you to do. As agent, you have a duty of loyalty to your Principal and you should conduct yourself in a manner that is consistent with your Principal’s values. You won’t know what their values are unless you ask.
- A power of attorney authorizes you to perform tasks for your Principal related to finances and property. So one thing you should do is find out what your Principal owns. Provide a copy of the power of attorney to banks and other business entities you will need to work with. We suggest that you do this early because some banks and financial institutions are ridiculous when asked to honor a power of attorney. If a third party objections to its use on technical grounds, by contacting them early, you can respond to any objections before your Principal is unable to provide assistance or execute a new power of attorney. If the power of attorney authorizes you to do everything you need to do, then a conservatorship probably isn’t necessary. On the other hand, if you need to take action and the power of attorney doesn’t give you the necessary authority, then you might be required to file a conservatorship petition to take action.
- If there is any chance you will use the power of attorney to purchase or sell land, the power of attorney will need to be filed at the Courthouse where deeds are recorded. In Georgia, deeds are recorded with the Clerk of Superior Court in the county where the land is located. You will need the original when you file the power of attorney. In our experience, although you are not required to file the power of attorney for any other reason, some third parties are more willing to accept a power of attorney that was filed at the courthouse.
- Keep records of everything you do. Do not use cash. If anyone questions you, the Court would review your actions to determine whether you exceeded your authority and whether you used funds or resources in a manner that is not in the best interests of your Principal. Terms you might hear include “breach of fiduciary duty,” disloyalty, theft. Keep in mind there are enhanced criminal penalties relating to abuse of the elderly and individuals with special needs, so if you’re accused of abusing a power of attorney, you could be in serious trouble. Always conduct yourself as if you will have to defend what you do on the witness stand and document your actions accordingly.
- Be very careful if you use a power of attorney to alter your Principal’s estate plan. A disappointed heir can sue you after the Principal dies if you steal someone’s inheritance. In the context of Medicaid Planning, estate plans are often altered because you can’t get Medicaid without spending down (or taking other legal action with) excess countable resources. You should assume you have a bullseye on your back if those excess resources end up in your pocket instead of being shared with other individuals named in your Principal’s Last Will and Testament. Speak with a lawyer who knows what you can and can’t do.
- If a third party refuses to honor a power of attorney, speak to a lawyer regarding whether you can file a lawsuit to force the third party to honor the document.
- If your Principal revokes the power of attorney, stop using it. Remember, just because your Principal gave you a power of attorney doesn’t mean you get to tell him or her what to do. Your Principal can change his or her mind and can revoke the document at any time while your Principal has legal capacity. A power of attorney creates a volunary agency relationship between you and your Principal. It does not give you authority to overrule your Principal. It does not take away your Principal’s authority to act for himself or herself. Really, all it does is make you a glorified errand boy (or girl).
- If you’re not sure what to do, speak with a lawyer.
