Limitations of Powers of Attorney
There are limitations to powers of Attorney. Powers of Attorney does not remove any rights. This is important when it comes to contracts. If your child is over the age of eighteen and enrolls in an online college program because they heard everyone at school talking about college and they want to go to college, so, they get online and they happen to have access to your credit card or some other way to pay, they might enroll in an online college program. I have had a client contact me about this very issue. Their child enrolled in an online college. Mom didn’t learn about it until she noticed an eight thousand dollar charge on her credit card, they contacted the school and said that she really doesn’t know what she’s doing and they said “I’m sorry to hear that, your choices are , we will reverse the charge if you will send us a police report that your credit card was used fraudulently or you can unenroll and you will get six thousand or so back.” Well, mom and dad didn’t want to run the risk of filing a police report against their child and chances are it would never be prosecuted but it doesn’t look very good, so they accepted that all they would get back was six thousand dollars. These are some of the issues that are a problem, after that point mom and dad decided that it was worth it doing the guardianship, so that’s why they were contacting me. Not having the rights removed is a problem; you cannot disavow or void contracts. By having the guardianship in place those contracts from the very beginning are void. So, Judge Clark who is the Gwinnett county probate judge will be happy to explain to whoever is saying that they still want to enforce their contracts that this individual, by law, cannot enter into a contract, therefore the contract you are holding cannot be enforced. Usually, just saying that to the court will make them say forget it. Powers of attorney can be revoked. This is more of a problem when mental illness and mental health issues are the problem. When the individual is fine, perhaps on medications, or whatever is not affecting them greatly, they can enter into a contract because they have the capacity to do that. The trouble is when they are in a crisis mode and if paranoid schizophrenia is one of those issues, they might instruct the doctors, they might instruct the therapist, “don’t talk to my parents at all anymore.” That is in effect of verbal revocation of the power of attorney. The treatment people must follow those instructions, even if they believe that this person does not have the capacity to make that decision. In Georgia, Powers of Attorney do not have to be accepted. You might run into problems of anybody even accepting your powers of attorney. Powers of attorney can be evidence of capacity, let’s say mom and dad in this enrolling in an online program, if I were representing the school, if we were about to go to court, I would ask “Do you have any powers of attorney?” If you say yes and here they are, those powers of attorney are evidence that you believe that your child has the capacity to enter into contracts because powers of attorneys are contracts. If you’re relying on them then I, the school, received a payment would also say that they have the ability to enter into contracts and therefore we can’t avoid. That is another issue you have got to be aware of, powers of attorney can be evidence that you think your child has capacity.
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.