A Brief introduction to Powers of Attorney

Georgia Estate planning attorney Mark Biernath and Cobb County Probate Judge Kelli Wolk introduce powers of attorney and discuss their effectiveness and limitations.

Mr.Biernath: When we talk about incapacity, when the incapacity occurs, or the incapacitating condition begins matters whether guardianship is the only option you have or whether you can use some of the alternatives such as powers of attorney. And I remember last time at the presentation there was some discussion about powers of attorney so were just going to spend a couple of slides on powers of attorney just to kind of address those issues. But in Georgia the magic age is 18, I believe there are some states where the age is 21, and sometimes people have the idea that they have to make this decision before they turn 21 but in Georgia that age is actually 18. And there are some advance planning techniques that can be used in otherwise you do have to look at the guardianship and conservatorship process. So were just going to take a quick look.

Judge Wolk: And one thing I’d like to add and it probably doesn’t apply to a lot of you here but may apply to some of your friends. Where you have a parent is a parent of a child until they are 18 unless they are emancipated or their rights are terminated or something like that. But you are not conservator of your minor’s money and where you’ve got medical malpractice settlements in some cases and you get settlements, there may need to be a need for conservatorship by a parent prior to the age of 18. I don’t want to dwell on that but just, when we talk about the over 18 need for a parent to have custody and control versus under 18, money is an entirely different thing when you talking about minors and you’ve got medical malpractice issues out there.

Mr. Biernath: That’s a good point because we are going to talk about guardianship and conservatorship. Those are actually 2 different concepts but they are all on the same petition. And they have similar requirements so where they diverge, hopefully will be clear and hopefully we’ll get to address those easily. A power of attorney is an agreement which allows your agent to act on your behalf if you’re unavailable or incapacitated. It can deal with finances, it can deal with health care decisions, and powers of attorney; hopefully all of you in this room have powers of attorney for yourself. Hopefully at least in health care areas so that if you can’t make the decisions for yourself any more you’ve named somebody who can make those health care decisions for you. The new form in Georgia is called the Georgia Advance Directive for Healthcare. But the old form works and pretty much any kind of health care power of attorney works in Georgia. One problem we have with financial powers of attorney in Georgia is we do not have a law that requires any one to accept them so you might have a very good financial power of attorney but the bank won’t take it. And right now there is no way to force the bank to take it. So sometimes were still forced into a conservatorship because these don’t work. And here’s where we’re addressing our situation. Here, in order to do power of attorney you have to be over the age of 18. So if your child is under the age of 18 if you had your child sign a power of attorney, technically it’s null. You also must have capacity. And here we go back to that word, what exactly does that word mean? And that’s what the whole concept of guardianship is about. If that individual doesn’t have capacity then they can’t enter into that power of attorney.

Judge Wolk: If I may, we end up a lot of times where people are simultaneously filing a guardianship action in my court and while that’s pending they have someone signing a power of attorney. So you have someone simultaneously saying “Mark sign this power of attorney. Judge, he’s not competent to do anything for him self at the same time. So you want to be careful about the timing if your alleging someone’s not competent or having capacity. You don’t simultaneously want to have them signing contracts, which is what a power of attorney is, is a contract for service.  Because they by definition and their own allegations, under your sworn testimony or sworn pleading, you swear to the facts stated, and you’re saying that they aren’t competent but you’re having them file, having them sign a power of attorney. It just convolutes your issue a little bit when you’re talking about people already over the age of 18 and signing powers of attorney.

Mr. Biernath: You have to understand and it has to be an independent choice. It’s not enough to put it in front of them and say “Sign this, its going to help us”. It’s the easy way out, it seems like the easy way out, but as Judge Wolk was mentioning it can actually lead to trouble.