In General, a power of attorney is a legal document that authorizes a person to act on your behalf as your “agent” or “attorney-in-fact.” These actions given to your agent or attorney-in-fact can be over your financial affairs and/or over health care matters. You have the ability to give the agent a very broad sweeping or general power OR you can limit the powers granted to the agent. The powers given to your agent will end upon your death. A power of attorney is an instrument that everyone should have in place because unexpected events can suddenly change your circumstances drastically. Life rarely gives us fair warning. With powers of attorney in place, your agent/attorney-in-fact can immediately handle your transactions or make decisions on your behalf.
Financial Power of Attorney
What is a financial power of attorney?
A financial power of attorney is the grant of legal rights, powers and authority by a person known as the “principal” to another person who is known as the “agent” or “attorney-in-fact.” The agent or attorney-in-fact in effect stands in the shoes of the principal and acts for him or her on financial and business matters. The attorney-in-fact can do whatever the principal may do—withdraw funds from bank accounts, trade stock, pay bills, cash checks—except as limited in the power of attorney. This does not mean that the attorney-in-fact can just take the principal’s money and run. The attorney-in-fact must use the principal’s finances as the principal would for his or her benefit, and it does not remove the principal’s authority to continue to act on his or her own behalf. The agent/attorney-in-fact only has the authority to act at the same time in accordance with the powers granted in the power of attorney. It is very important that the financial power of attorney be “durable.” Durable means that it is a continuing power that survives the principal’s future legal incapacity. So, in the future, if you are no longer able to handle your own affairs then your agent/attorney-in-fact can step-in and handle them for you.
What are the typical powers granted under a Durable Power of Attorney?
Truthfully, there are no standard powers granted to an agent/attorney-in-fact but there are some common powers needed to adequately represent a person with their financial matters. An agent/attorney-in-fact needs to have the authority to deal with banking and other financial institution matters, which include checking accounts, savings accounts, money market accounts and certificate of deposit accounts. Also, the ability to sale the home place or other real estate may be needed so the agent/attorney-in-fact needs to have the authority to handle any real property transactions. Also, authority needs to be granted to deal with personal property (cars, boats, and household furnishings), retirement plan transactions (IRA’s), life insurance products (life insurance policies and annuities), stocks and bond transactions, and tax matters (income and gift taxes).
We recommend that a power of attorney also grant the agent/attorney-in-fact the authority to make gifts in any amount, not limited to the annual gift tax exclusion of $13,000.00 per person, in case the assets needed to be shifted in a greater amount to qualify for public benefits. The power also needs to include the ability for the agent/attorney-in-fact to create and administer trusts if again needed to qualify for public benefits. And finally, the power of attorney needs to grant the ability to apply for and receive public benefits on behalf of the principal.
What Rules should my agent follow when acting on my behalf?
The agent or attorney-in-fact must adhere to the fiduciary standards in our state. The agent or attorney-in-fact has a duty of loyalty to the person for whom he or she is acting for (principal). The duty of loyalty requires that the agent or attorney-in-fact acts solely in the best interest of the principal, free of any self-dealing, conflicts of interest, or other abuse of the principal for a personal advantage. In other words, this person must have your best interest in mind and cannot intentionally receive a personal gain at your detriment.
What if there is more than one attorney-in-fact?
Depending on the wording of the power of attorney, the co-agents may or may not have to act together on all transactions. In most cases, when there are multiple agents/attorneys-in-fact, the power of attorney document specifies that they can each act independently of one another. Nevertheless, it is important for them to communicate with one another to make certain that their actions are consistent.
When does the power of attorney take effect?
Unless the power of attorney is “springing,” it takes effect as soon as it is signed by the principal. A “springing” power of attorney takes effect only when the event described in the instrument itself takes place. Typically, this is the incapacity of the principal as certified by one or more physicians.
Does the power of attorney take away a principal’s rights?
No, absolutely not. Only a court can take away a principal’s rights in a conservatorship or guardianship proceeding. An agent/attorney-in-fact simply has the power to act along with the principal.
Can the principal change his or her mind?
Certainly. A principal may revoke a power of attorney at any time. All a principal needs to do is send a letter to his or her agent/attorney-in-fact telling them that their appointment has been revoked. From the moment the agent/attorney-in-fact receives the letter, he or she can no longer act under the power of attorney.
Can an attorney-in-fact be held liable for his or her actions?
Yes, but only if he or she acts with willful misconduct or gross negligence
Can an attorney-in-fact be compensated for his or her work?
Yes, if the principal has agreed to pay the attorney-in-fact. In general, the agent/attorney-in-fact is entitled to “reasonable” compensation for his or her services. However, in most cases, the agent/attorney-in-fact is a family member and does not expect to be paid. If an agent/attorney-in-fact would like to be paid, it is best that he or she discuss this with the principal, agree on a reasonable rate of payment, and put that agreement in writing. That is the only way to avoid misunderstandings in the future.
Can the attorney-in-fact be fired?
Certainly. The principal may revoke the power of attorney at any time. All he or she needs to do is send the agent/attorney-in-fact a letter to this effect. The appointment of a conservator or guardian does not immediately revoke the power of attorney. But the conservator or guardian, like the principal, has the power to revoke the power of attorney.
What kind of records should the attorney-in-fact keep?
It is very important that the agent/attorney-in-fact keep good records of his or her actions under the power of attorney. That is the best way to be able to answer any questions anyone may raise. The most important rule to keep in mind is not to commingle the funds the attorney-in-fact is managing with his or her own money. Keep the accounts separate. The easiest way to keep records is to run all funds through a checking account. The checks will act as receipts and the checkbook register as a running account.
Advance Directive for Healthcare/Healthcare Power of Attorney:
In General
Many people in Georgia have or previously had a Living Will and a Durable Power of Attorney for Healthcare. The Living Will is a legal document allowing an individual to choose whether or not he or she wants to die naturally, without death being artificially prolonged by various medical procedures. The Living Will is an authorization to your medical professionals to withhold or withdraw certain medical procedures, such as a ventilator, respirator, feeding tube, hydration solutions, and pain medication. The Durable Power of Attorney for Healthcare is a legal document appointing and naming another person to make health related decisions on one’s behalf and it gives this person called the agent, some idea of what we may or may not want regarding potential medical procedures that may need to be administered in the future. On July 1, 2007, the new Georgia Advance Directive for Healthcare replaced the Georgia laws on the Living Will and the Durable Power of Attorney for Healthcare. The new document is called the Georgia Advance Directive for Healthcare. The intent of this instrument is cover the same territory as the Living Will and Durable Power of Attorney for Healthcare but also is to avoid the confusion created by the overlap and contradiction of the former documents. The Georgia Advance Directive for Health Care now provides that individuals have the right to control all aspects of their medical care – including the right to insist on medical treatment, request it to be withdrawn or to refuse treatment. The new legal document allows individuals to appoint an agent to make medical treatment decision on their behalf, if direct communication is not possible, and it authorizes an individual’s medical professionals to withhold or withdraw certain treatments or procedures. In addition, the document contains specific privacy-related release language as required by HIPAA (Health Insurance Portability and Accountability Act).
Is the Georgia Advance Directive for Healthcare the same as a Durable Power of Attorney for Healthcare or my Living Will?
As stated, the Georgia Advance Directive for Healthcare combines these two documents into a single legal document and makes it easier for individual’s wishes to be known. Durable Powers of Attorney and Living Wills made before July 1, 2007 are still valid and you may continue to use them effectively. However, if possible, the new document should be executed because additional considerations can be addressed that were not covered in your current documents.
What type of medical procedures and treatments are you talking about?
Treatments and procedures that may extend life for otherwise terminal patients such as a ventilator, CPR, artificial nutrition (feeding tubes), hydration (IV fluids) and kidney dialysis.
Why do I need to complete a Georgia Advance Directive for Healthcare?
This legal document allows individuals to express their wishes about their own end of life care even when they can’t communicate. It lets the family and the medical professionals know what they want and what they do not want to happen to when they are near the end of their lives. If this document in not in place, individuals who cannot make their own decision have to abide by the priority designations under the Georgia “next-of-kin” law. The law states that the following persons can make medical decisions for patients who do not have capacity to decide for themselves, in the following order of priority: (a) an adult child for a parent; (b) a parent for an adult child; (c) an adult for a brother or sister; (d) a grandparent for a grandchild; (e) an adult grandchild for a grandparent; (f) an adult niece, nephew, aunt, or uncle in the first degree; or (g) an adult friend. Also, under this law, an Advance Directive for Healthcare has complete priority over any of the afore-stated relationships so this is why it is needed.
What is a “Do Not Resuscitate” (DNR) order?
A DNR order is a written order from a physician that informs medical personnel that resuscitation should not be attempted if a person suffers cardiac or respiratory arrest. There are DNR orders in the hospital and then there are DNR orders written for out in the community. Community can mean a home, assisted living facility, personal care home and skilled nursing home. Just because a person has a DNR order in the hospital does not mean it will transfer out of the hospital. If a person wants a DNR order once leaving the hospital another one needs to be filled out for use in the community.
When does a physician write a DNR order?
A physician can write a DNR for a patient after a verbal conversation with a competent adult patient or the person’s healthcare agent. Both the agent and the doctor should try to abide by the person’s wishes, which are listed in the Advance Directive for Healthcare. In some instances, a physician will write a DNR order when resuscitation will not alter the outcome of the disease or if resuscitation will cause unnecessary suffering. Two physicians signatures are required for a DNR to be followed at the necessary time to act on it. In other words, an attending physician with the concurrence (agreement) of another physician must determine that the person is a “candidate for nonresuscitation” before the DNR order can be written by an attending physician.
How will medical personal know that a DNR order is in place?
In a hospital or out in the community, there will be a large notice on the front of the chart. In the community, identification necklaces and bracelets are available and can be worn to make sure all medical personnel recognize and adhere to patient’s wishes.
Does a DNR order stop medical personal from treating a patient completely?
No, a DNR only refers to resuscitation (CPR) efforts and does not interfere with other treatments. For example, transfusions, kidney dialysis, use of a ventilator and antibiotic therapy. Treatment that keeps a person free of pain and comfortable should always be given.
Can a DNR order be revoked?
Yes, DNR orders should be reviewed periodically by the doctor and revoked if appropriate. A person can revoke his DNR at any time.
What is a “code”?
A code is a word that hospital and nursing homes use to mean resuscitation efforts should be initiated.
What is a “no code”?
A “no code” is an informal name for a DNR.
Is there a form of the Georgia Advance Directive for Healthcare?
Yes. Click here to print a copy of the Georgia Advance Directive. The Georgia Advance Directive for Health Care form contains four (4) parts. The first part provides for an individual to appoint a healthcare agent to make healthcare decisions on his or her behalf upon incapacity. Typically, a spouse and/or child, or children, are named as the healthcare agent(s). Other scenarios include a trusted friend who is named and will have your best interest in mind. Further, the first part of the form can give the healthcare agent the ability to make decisions after one’s death with respect to an autopsy, organ donation, body donation for medical study, and final disposition of the body. In making these decisions, the agent should consider conversations with the patient, which includes medical treatment preferences, and religious, cultural and other beliefs of the patient. Next, the second part of the form lays out specific scenarios relating to medical conditions such as a terminal illness with imminent death, and a state of permanent unconsciousness. For each medical condition, the specific medical treatment preferences may be selected by the individual; thus, making his or her wishes known to the health care agent and physician who may provide the treatment. Further, the third part of the form allows an individual to nominate a guardian in the event a court decides that one should be needed. It is always preferable to have an advance directive in place that indicates who you want to make significant responsible decisions for you regarding your personal support, safety, or welfare. And finally, the fourth part of the form provides the signature and witness requirements necessary to evidence that the decisions made in the advance directive are clear, effective and genuinely one’s own.
Click here to print a copy of the Georgia Advance Directive.
