Powers of Attorney, Guardianship, and Property
With regard to property, for a person, we can set up or a lot of times you can set up by doing some planning ahead of time for instance, a trust. You say I want to leave some money to benefit my child, but I know that my child can’t control that, or is not going to make good decisions. And this might be a factor of being a teenager, and not having any sort of disability. So a trust can be used for that. But in the absence of the ability for the child to sign power of attorney or the trust has not been set up, we might be looking at a guardianship or conservatorship. So, powers of attorney, this is what allows someone to act on your behalf when you are incapacitated. If you don’t have capacity from the get go to understand to sign those documents, then a power of attorney is not going to work. With powers of attorney, there’ll be a financial power of attorney, naming some to make financial decisions. Health care power of attorney, known in Georgia as the advance directive for health care, that’s a document that has to do with living situations, health care situations. An important thing to realize, even if we did a financial power of attorney in Georgia there is no law in Georgia that requires a bank, financial institution, anyone else to actually honor that financial power of attorney. So, sometimes a trust, if we are going to be able to do some advance planning, a trust is going to be a better option than a power of attorney. In order to sign a power of attorney someone must be over the age of 18 and must have capacity, must understand what it is that they are signing, it must an independent choice. This can’t be, “sign this power of attorney or else I’m going to go file for guardianship”. It needs to be an independent choice that the person signing it is making. It also has to be in writing, and it may need notarized. The medical decision making one does not, but if we’re going to use a financial power of attorney that ultimately we want to convey real property one day, then it would need to be notarized.
Nadler Biernath LLC assists clients in the Atlanta, Georgia area and throughout Georgia including Kennesaw, Alpharetta, Roswell, Marietta, Buckhead, Johns Creek, Duluth, East Cobb and Dunwoody.