The Georgia Statutory General Power of Attorney Form Guide
What is a General Power of Attorney?
The General Power of Attorney is a power of attorney that can give a broad range of powers. This General Power of Attorney, under Georgia law, is authorized under Georgia Code O.C.G.A. 10-6-1. This statute outlines the ability to create a general power of attorney so that the agent can make a wide range of decisions. This means the Principal with the most control over their personal and financial matters under Georgia law can make all sorts of decisions.
Essentially, the purpose of a General Power of Attorney is to allow an agent to act on behalf of the Principal in a comprehensive way . This means that the agent can handle financial matters, make real estate contracts, conduct banking or other financial transactions, make tax transactions, handle government benefits issues, and many other affairs in the Principal’s best interest.
Under Georgia law, a Georgia General Power of Attorney is used in various circumstances including:
Importantly, under Georgia law, a General Power of Attorney does not necessarily mean it is effective at the time of execution or even when the Principal is unable to perform the functions and management of his business or financial affairs. Sometimes a durable power of attorney which lasts beyond incapability may be needed. In these situations, the durable power of attorney (not the general power) may be needed so the agent can act during the Principal’s disability.
The Legal Requirements in Georgia
The legal requirements in Georgia for a valid General Power of Attorney form differ slightly from other states, although many of its components are largely universal. This section analyzes the specific provisions and formalities necessary to create this document.
A valid General Power of Attorney in Georgia must:
- Be executed while the "principal" (the person executing the power) is "competent" and "of sound mind."
- Include the names of the "principal" and the "agent" (the person authorized to act on behalf of the principal).
- Contain the signature of the principal and two witnesses, or be notarized in lieu of a witness.
- Be witnessed by a notary, if it appoints the agent as the guardian of the principal.
- Be executed according to the laws of the State of Georgia if the principal resides in Georgia, unless the principal is a non-resident executing the power in Georgia for an estate located in another state, in which case Georgia law will govern.
- Be filed with the Clerk of Courts in the jurisdiction where the principal resides, if it "completes a contract" or gives power over "real estate."
- Be filed with a surrogate court, under certain circumstances, after the principal is dead if the POA was "revoked" by a former spouse or an individual who, upon the principal’s death, is eligible to receive property transferred by the instrument.
When to Use a General Power of Attorney
A General Power of Attorney (GPOA) is appropriate when an individual (the Principal) anticipates being unavailable to conduct his/her own financial or legal business. This form is often used to allow a trusted person (the Agent) to handle financial matters. The GPOA is used extensively in estate planning.
A common situation where an individual may need to delegate some of his/her financial authority is going on vacation. For example, if a house is rented out on vacation property, the property owner may wish to have another person (Agent) run the property business in the Owner’s absence. If the homeowner rents an apartment unit, he/she may wish to appoint another person (Agent) to collect the rent. Renting out real property is a good example of an area of concern for a homeowner who depends on rental income. The owner is not physically available to collect late rent or to make necessary repairs if he/she is away.
Another situation where a GPOA can be useful comes in the context of real property closings. An individual who owns multiple properties may wish to authorize another person (Agent) to execute a real property closing in the Owner’s name and to receive proceeds of the sale. This would be the case where the Owner is not available to attend a closing. This is particularly useful where the Owner is travelling outside of the country and cannot be physically present for the closing or where the Owner can’t be contacted.
When introduced at a closing, a GPOA should be accompanied by a letter. The letter should contain language that describes the Attorney-in-Fact’s authority at the closing. In some cases lenders have specific requirements as to how GPOA’s are to be presented.
A GPOA can be useful in the context of a business owner. The Owner may only have one physical location to operate his/her business. The Owner may want to delegate financial authority in order to handle business matters at a different location. An example is a broker who may handle commercial and/ or residential properties. The Broker may want to designate another agent to sign off on his/her behalf while handling business with clients who need assistance. Another business-related use for a GPOA is to give trust Person (Agent) financial authority in the event the business owner is temporarily incapacitated. An example of this scenario is a hospital emergency where the Business Owner is in the hospital and unable to conduct business. This allows the Business Owner to have someone conduct business (for example, sign government contracts, pay employees, etc.).
How to Complete the Form
To fill out a General Power of Attorney form in the state of Georgia, there are several key details that must be included. After reading through the entire document carefully, the principal – the individual granting the power of attorney – should start by completing the opening section. This will require the principal to identify themselves, along with the agent they are designating for the power of attorney. It is vital that the names are filled out carefully and correctly to avoid future confusion. Including a middle name or initial, as well as the full address and contact information for both individuals, helps to clarify any possible wrongs as to their identity.
The next step is for the agent to complete the witness information section. Again, the names, middle names, and contact information are useful in proving their true identity if necessary. This may differ depending on the exact form being filled out , but is generally found at the bottom of page one.
The third step is to scan through the entire document carefully to ensure that all of the blanks have been filled out properly. Types of information required will vary from the principal’s birth date and social security number to the intended duration of the power of attorney, if applicable.
Finally, the principal, agent, and the witnesses should each sign and date the form at the designated areas. If there are multiple witnesses required, you may need to have the same people sign in a specific order across multiple pages, such as on page one and page three of the General Power of Attorney form. The notary public who is witnessing the signing process may also be required to sign at the bottom of one or more pages, along with submitting their seal.
Be sure to double-check each page of the General Power of Attorney form to ensure that the notary public, agent, and principal have all signed in the correct spaces, especially if there is more than one signer. One of the biggest mistakes made on these forms is forgetting to have the document notarized.
Revoking a General Power of Attorney
Revoking a General Power of Attorney in Georgia is not as simple as just sending a notice to your agent. However, the process of revocation is usually pretty simple.
First of all, it is important to note that you cannot just revoke your agent’s authority. Your agent has a written document that gives them authority through signing of the Georgia General Power of Attorney Form (and likely through the signing of a financial power of attorney). Simply contacting them and saying that you revoke their authority is not enough. A revocation must be in writing and on an official Georgia statutory form. The official form to be filled in and signed when you wish to revoke your general power of attorney form. However, in some cases you can revoke your general power of attorney form by completing a revocation of power of attorney form.
Once you have the appropriate form filled out, you need to serve it on your agent like you would any other legal filing in Georgia. You should also contact any interested parties that are relevant to your particular case. For example, if you have a real estate transaction in-progress that is being handled by your agent, you can inform the closing attorney about the revocation. In some cases, your agent may have already presigned the revocation form when they signed your general power of attorney form but the agent’s signature on the revocation form should be notarized.
Any third party acting in reliance on a power of attorney shall be held harmless from the liability of an official who purportedly executed the revocation of the authority granted in the original Power of Attorney if the notice of the revocation of power of attorney is not actually received from the principal. The original Power of Attorney terminates when the agent receives a revocation and it is returned to the principal.
It will be up to the agents to be aware of the fact that it has been revoked and once the original is returned to the principal, then the power of attorney is revoked and the agent has no more authority to conduct business for the principal. The statute also provides a safe harbor so that the agent is not liable if the Power of Attorney is revoked but the agent has not actually received a notice of the termination of the original POA.
Resources and Assistance
For those seeking further information about Aging and the Law, the following websites are available. They include links to legal aid organizations and other volunteer attorney programs that offer assistance to low income clients.
National Academy of Elder Law Attorneys (NAELA) (http://www.naela.org/) is a national association of lawyers dedicated to improving the quality of legal services provided to older adults and people with disabilities . The NAELA website offers legal education resources for attorneys and consumers.
The National Elder Law Foundation (NELF) (http://www.nelf.org/) is the only national organization certifying asset and estate planning and elder law attorneys as Accredited Estate Planners. The website offers a directory of certified attorneys.