New law strengthens power of attorney rules

If you were suddenly unable to speak or write for the next few weeks or even months, what would your financial situation look like?

Have you designated someone to manage your affairs if you become incapacitated from a stroke, accident or other long-term illness?

Gov. Nathan Deal recently signed into law legislation that strengthens Georgia’s Power of Attorney Code ensuring Georgians’ peace of mind as they make end-of-life decisions.

Georgia House Bill 897 was a follow-up to legislation passed in 2017 guaranteeing a uniform power of attorney form. A power of attorney gives a person that you designate the power to make financial decisions on your behalf.

Prior to the 2017 legislation, some financial institutions had their own power of attorney forms and would not necessarily accept documents prepared by an attorney. Imagine preparing your estate plan with your attorney, feeling like you were safe and secure if anything should happen, only to find out that your financial institution considered your planning invalid.

To keep that from happening, legislators worked with Georgia lawyers and financial institutions to develop a statutory form that could be accepted anywhere in the state. The law also instituted a penalty for refusing to accept the form.

This change has greatly reduced the anxiety surrounding estate planning for the elderly. Now Georgians can feel comfortable knowing that their wishes will be adhered to by their financial institutions.

Georgia HB 897 clarified a few points that were missing from the 2017 legislation. One key change is the requirement that when signing the power of attorney, the witness and the attesting officer cannot be agents named in the power of attorney. The bill also clarified what exactly must be included in the power of attorney and that the agent may only exercise fiduciary powers that are expressly and clearly identified in the power of attorney.

When contemplating executing a power of attorney, you should choose an agent that you trust to make decisions on your behalf. You should make sure this person is willing and able to act in this regard and that this person understands your financial priorities and goals so he or she can make decisions in your best interest. You should also choose a secondary agent in case something happens to your primary choice and he or she is unwilling or unable to fulfill his or her duties.

A general power of attorney may allow your agent to make decisions on your behalf in regard to real property, tangible personal property, stocks and bonds, commodities and options and banks or other financial institutions. Further, your agent may make decisions about a business or other entity, insurance and annuities, estates and trusts, claims and litigation, and government program benefits. Finally, you may wish to give your agent authority over retirement plans, taxes and personal and family maintenance. You may choose to give your agent authority over just one or as many as all of these options.

Additionally, you can specify a number of other fiduciary responsibilities for your agent to include the right to create, fund, amend or terminate a living trust, make a gift or exercise authority over electronic communication, among others. You may include as many special instructions as necessary to express your wishes in these regards.

To find out more about creating a power of attorney that meets your specific needs, contact a trusted estate planning attorney.

Attorney Dolly Chisholm is a partner with Bouhan Falligant specializing in estate planning, probate and real estate. Reach her at dchisholm@bouhan. com or 912-644-5723.