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During the 1995 Georgia General
Assembly, the Legislature voted to establish within the Official
Code of Georgia Annotated, at Section 10-6-140, a statutory form for
the Financial Power of Attorney. The form that is set out in the
statute may be used to create a Financial Power of Attorney. This
form is merely a suggestion and is not the only form permitted to
create a Financial Power of Attorney.
The information attached includes an
explanation of the Financial Power of Attorney, cautionary language
to those considering giving someone power over their financial
affairs and instructions for completing the statutory form.
Finally, attached is a copy of the form substantially the same as
the form which appears in the Official Code of Georgia Annotated.
You may use this actual form or you
may have someone prepare this form for you in another format. If
you are thinking about executing a Financial Power of Attorney and
these instructions are not clear to you, please talk with an
attorney before completing the form.
This information is not intended as
specific legal advice. It has been provided to you as educational
materials by the Division of Aging Services, an agency within the
Department of Human Services, which administers programs for the
elderly in the State of Georgia.
EXPLANATION FOR PRINCIPALS
WHAT IS A FINANCIAL POWER
OF ATTORNEY?
This document is called a
'Financial Power of Attorney.' It allows you to name one or more
persons to help you handle your financial affairs. Depending on
your individual circumstances, you can give this person or persons
complete or limited power to act on your behalf. This document does
not give someone the power to make medical decisions or personal
decisions for you.
WHAT CAN MY AGENT DO?
The 'Agent' is the person you give
power to handle your financial affairs.
The 'Principal' is you.
Your decision to use this document
is a very important one and you should think carefully about what
financial decisions you want your Agent to make for you. With this
document, you can give your Agent the right to make all financial
decisions or only certain, limited decisions.
For example, you can allow your
Agent to handle all your financial affairs, including the power to
sell, rent, or mortgage your home, pay your bills, cash or deposit
checks, buy and sell your stock, investments, or personal items, or
you can allow your Agent to handle only certain or specific
financial affairs such as paying your monthly bills.
DO I GIVE ALL MY POWERS
AWAY?
No. Even with this document, you
can still handle your own financial affairs as long as you choose to
or are able to.
You need to talk to your Agent
often about what you want and what he or she is doing for you using
the document. If your Agent is not following your instructions or
doing what you want, you may cancel or revoke the document and end
your Agent's power to act for you.
HOW DO I REVOKE MY FINANCIAL
POWER OF ATTORNEY?
You may revoke your financial power
of attorney by writing a signed and dated revocation of power of
attorney and giving it to your Agent. You should also give it to
anyone who has been relying upon the financial power of attorney and
dealing with your Agent, such as your bank and investment
institutions.
Unless you notify all parties
dealing with your Agent of your revocation, they may continue to
deal with your Agent. You should contact a lawyer if your Agent
continues to act after you have revoked the power of attorney.
WHEN DOES MY AGENT'S AUTHORITY
END?
As long as you are living, the
financial power of attorney will remain in effect even if you become
incapacitated or unable to communicate your wishes unless:
(1) A guardian is appointed for
your property; or
(2) You include a date or specific
occurrence when you want your document to be canceled.
However, upon your death or the
death of your Agent or successor Agents, the document will be
canceled and the Agent's power to act for you will end.
You can also include a date or a
specific occurrence like your incapacity or illness as the time when
you want your document to be canceled and your Agent's power to act
for you to end.
WHEN DO THE POWERS TAKE
EFFECT?
Depending on your circumstances,
you may wish to specify an occurrence or a future date for the
document to become effective. Unless you do so, the power of
attorney becomes effective immediately.
MUST MY AGENT DO THOSE
THINGS I AUTHORIZE?
No. But if your Agent accepts this
responsibility and agrees to act for you, he or she is required to
sign and date the 'Acceptance of Appointment' contained in the
financial power of attorney form.
HOW DO I COMPLETE THIS
DOCUMENT?
Both the Principal and the Agent
should read the full document carefully before initialing or
signing. The Principal and the Agent should fully understand what
powers are being granted to the Agent and what restrictions, if any,
exist.
Read each paragraph carefully. If
you decide to give your Agent the power described in the paragraph,
initial your name at the end of the paragraph.
If you do not wish to give your
Agent the power described in a paragraph, strike through and initial
the paragraph or any line within a paragraph.
HOW DO I EXECUTE THE
DOCUMENT?
Two adult witnesses must watch you
sign your name on the document. At least one witness cannot be the
Principal's spouse or blood relative. After they witness you
signing your name, the witnesses must sign their names.
This document does not need to be
notarized unless real property (land with or without buildings on
it) transactions such as leasing, selling, or mortgaging of property
are authorized.
THIS DOCUMENT REFLECTS THE
WISHES OF THE PRINCIPAL
Do not let anyone pressure you into
making a financial power of attorney, naming an Agent, or granting a
power unless it is your choice.
If you do not understand any
portion of this document, you should ask a lawyer to explain it to
you. If you are 60 years old or older you may get brief
legal advice for free by calling the Georgia Seniors Legal Hotline
at the toll-free number: 1 (888) 257-9519 or locally at (404)
657-9915.
SAMPLE STATUTORY FORM
As described in the Official Code
of Georgia Annotated Section 10-6-140 et seq., The Georgia Statutory
Form for Financial Power of Attorney shall be substantially as
follows:
CAUTION
Be advised that banking institutions are now mandatory
reporters for suspected Financial Exploitation under the Disabled
Adults and Elder Persons Protection Act. Some banking institutions
may be reluctant to accept Financial Powers of Attorney that have
been executed under the following situations:
* if the principal does not
personally informing the bank that this is being done;
* the financial power of attorney is executed after a physical or
mental incapacitating event has already occurred,
* the financial power of attorney form is not one that the banking
institution normally uses or is used to seeing,
or
* the agent(s) named is/are not known by the banking institution to
have been previously associated with the principal.
Should this happen, the principal and/or the agent(s) may have to
seek legal advice on how to proceed.
FINANCIAL POWER OF ATTORNEY
County
of
State of Georgia
I,
, (hereinafter 'Principal'), a resident of
County, Georgia, do hereby constitute and appoint
my true and lawful attorney-in-fact (hereinafter 'Agent') for me and
give such person the power(s) specified below to act in my name,
place, and stead in any way which I, myself, could do if I were
personally present with respect to the following matters:
(Directions: To give the Agent the
powers described in paragraphs 1 through 13, place your initials on
the blank line at the end of each paragraph. If you DO NOT want to
give a power to the Agent, strike through the paragraph or a line
within the paragraph and place your initials beside the stricken
paragraph or stricken line. The powers described in any paragraph
not initialed or which has been struck through will not be conveyed
to the Agent. Both the Principal and the Agent must sign their full
names at the end of the last paragraph.)
1. Bank and Credit Union
Transactions: To make, receive, sign, endorse, execute,
acknowledge, deliver and possess checks, drafts, bills of exchange,
letters of credit, notes, stock certificates, withdrawal receipts
and deposit instruments relating to accounts or deposits in, or
certificates of deposit of banks, savings and loans, credit unions,
or other institutions or associations.
2. Payment Transactions: To pay all sums of money, at any time or
times, that may hereafter be owing by me upon any account, bill of
exchange, check, draft, purchase, contract, note, or trade
acceptance made, executed, endorsed, accepted, and delivered by me
or for me in my name, by my Agent.
Note: If you initial paragraph 3
or paragraph 4 which follow, a notarized signature will be required
on behalf of the Principal.
3. Real Property Transactions: To
lease, sell, mortgage, purchase, exchange, and acquire, and to
agree, bargain, and contract for the lease, sale, purchase,
exchange, and acquisition of, and to accept, take, receive, and
possess any interest in real property whatsoever, on such terms and
conditions, and under such covenants, as my Agent shall deem proper;
and to maintain, repair, tear down, alter, rebuild, improve manage,
insure, move, rent, lease, sell, convey, subject to liens,
mortgages, and security deeds, and in any way or manner deal with
all or any part of any interest in real property whatsoever,
including specifically, but without limitation, real property lying
and being situated in the State of Georgia, under such terms and
conditions, and under such covenants, as my Agent shall deem proper
and may for all deferred payments accept purchase money notes
payable to me and secured by mortgages or deeds to secure debt, and
may from time to time collect and cancel any of said notes,
mortgages, security interests, or deeds to secure debt.
4. Personal Property
Transactions: To lease, sell, mortgage, purchase, exchange, and
acquire, and to agree, bargain, and contract for the lease, sale,
purchase, exchange, and acquisition of, and to accept, take,
receive, and possess any personal property whatsoever, tangible or
intangible, or interest thereto, on such terms and conditions, and
under such covenants, as my Agent shall deem proper; and to
maintain, repair, improve, manage, insure, rent, lease, sell,
convey, subject to liens or mortgages, or to take any other security
interests in said property which are recognized under the Uniform
Commercial Code as adopted at that time under the laws of Georgia or
any applicable state, or otherwise hypothecate (pledge), and in any
way or manner deal with all or any part of any real or personal
property whatsoever, tangible or intangible, or any interest
therein, that I own at the time of execution or may thereafter
acquire, under such terms and conditions, and under such covenants,
as my Agent shall deem proper.
5. Stock and Bond Transactions:
To purchase, sell, exchange, surrender, assign, redeem, vote at any
meeting, or otherwise transfer any and all shares of stock, bonds,
or other securities in any business, association, corporation,
partnership, or other legal entity, whether private or public, now
or hereafter belonging to me.
6. Safe Deposits: To have free
access at any time or times to any safe deposit box or vault to
which I might have access.
7. Borrowing: To borrow from time
to time such sums of money as my Agent may deem proper and execute
promissory notes, security deeds or agreements, financing
statements, or other security instruments in such form as the lender
may request and renew said notes and security instruments from time
to time in whole or in part.
8. Business Operating
Transactions: To conduct, engage in, and otherwise transact the
affairs of any and all lawful business ventures of whatever nature
or kind that I may now or hereafter be involved in.
9. Insurance Transactions: To
exercise or perform any act, power, duty, right, or obligation, in
regard to any contract of life, accident, health, disability,
liability, or other type of insurance or any combination of
insurance; and to procure new or additional contracts of insurance
for me and to designate the beneficiary of same; provided, however,
that my Agent cannot designate himself or herself as beneficiary of
any such insurance contracts.
10. Disputes and Proceedings: To
commence, prosecute, discontinue, or defend all actions or other
legal proceedings touching my property, real or personal, or any
part thereof, or touching any matter in which I or my property, real
or personal, may be in any way concerned. To defend, settle,
adjust, make allowances, compound, submit to arbitration, and
compromise all accounts, reckonings, claims, and demands whatsoever
that now are, or hereafter shall be, pending between me and any
person, firm, corporation, or other legal entity, in such manner and
in all respects as my Agent shall deem proper.
11. Hiring Representative: To hire
accountants, attorneys at law, consultants, clerks, physicians,
nurses, agents, servants, workmen, and others and to remove them,
and to appoint others in their place, and to pay and allow the
persons so employed such salaries, wages, or other remunerations, as
my Agent shall deem proper.
12. Tax, Social Security, and
Unemployment: To prepare, to make elections, to execute and to file
all tax, social security, unemployment insurance, and informational
returns required by the laws of the United States, or of any state
or subdivision thereof, or of any foreign government; to prepare, to
execute, and to file all other papers and instruments which the
Agent shall think to be desirable or necessary for safeguarding of
me against excess or illegal taxation or against penalties imposed
for claimed violation of any law or other governmental regulation;
and to pay, to compromise, or to contest or to apply for refunds in
connection with any taxes or assessments for which I am or may be
liable.
13. Broad Powers: Without, in any
way, limiting the foregoing, generally to do, execute, and perform
any other act, deed, matter, or thing whatsoever, that should be
done, executed, or performed, including, but not limited to, powers
conferred by Code Section 53-12-232 of the Official Code of Georgia
Annotated, or that in the opinion of my Agent, should be done,
executed, or performed, for my benefit or the benefit of my
property, real or personal, and in my name of every nature and kind
whatsoever, as fully and effectually as I could do if personally
present.
14. Effective Date: This document
will become effective upon the date of the Principal's signature
unless the Principal indicates that it should become effective at a
later date by completing the following, which is optional.
The powers conveyed in this
document shall not become effective until the following time or upon
the occurrence of the following event or contingency:
Note: The Principal may choose to
designate one or more persons to determine conclusively that the
above-specified event or contingency has occurred. Such person or
persons must make a written declaration under penalty of false
swearing that such event or contingency has occurred in order to
make this document effective. Completion of this provision is
optional.
The following person or persons are designated to determine
conclusively that the above-specified event or contingency has
occurred:
Signed:
Principal
Signed: Agent
It is my desire and intention that
this power of attorney shall not be affected by my subsequent
disability, incapacity, or mental incompetence. However, I
understand that it shall be revoked and the Agents power canceled in
the event a guardian is appointed for my property. As long as no
such guardian is appointed, any and all acts done by the Agent
pursuant to the powers conveyed herein during any period of my
disability or incapacity or mental incompetence shall have the same
force and effect as if I were not disabled, incapacitated, or
mentally incompetent.
I may, at any time, revoke this
power of attorney and it shall be canceled by my death. Otherwise,
unless a guardian is appointed for my property, this power of
attorney shall be deemed to be in full force and effect as to all
persons, institutions, and organizations which shall act in reliance
thereon prior to the receipt of written revocation thereof signed by
me and prior to my death.
I do hereby ratify and confirm all
acts whatsoever which my Agent shall do, or cause to be done, in or
about the premises, by virtue of this power of attorney.
All parties dealing in good faith
with my Agent may fully rely upon the power of and authority of my
Agent to act for me on my behalf and in my name, and may accept and
rely on agreements and other instruments entered into or executed by
the agent pursuant to this power of attorney.
This instrument shall not be
effective as a grant of powers to my Agent until my Agent has
executed the Acceptance of Appointment appearing at the end of this
instrument. This instrument shall remain effective until revocation
by me or my death, whichever occurs first.
Compensation of Agent.
(Directions: Initial the line following your choice.)
1. My Agent shall receive no
compensation for services rendered.
2. My Agent shall receive reasonable compensation for services
rendered.
3. My Agent shall receive $
for services rendered.
IN WITNESS WHEREOF, I have hereunto
set my hand and seal on this day of
, .
(Month)
(Year)
Signed:
Principal
WITNESSES:
Signature and Address
Signature and Address
NOTE: A notarized signature is not required unless you have
initialed paragraph 3 or 4 regarding property transactions.
I,
, a Notary Public, do hereby certify that
personally appeared before me this date and acknowledge the due
execution of the foregoing Power of Attorney.
Notary Public [Seal]
My Commission Expires:
______________
County
of
State of Georgia
ACCEPTANCE OF APPOINTMENT
I,
(print name), have read the foregoing Power of Attorney and am
the person identified therein as Agent for
(name of grantor
of power of attorney), the Principal named therein. I hereby
acknowledge the following:
I owe a duty of loyalty and good
faith to the Principal, and must use the powers granted to me only
for the benefit of the Principal.
I must keep the Principal's funds
and other assets titled in the name of the Principal and separate
and apart from my funds and other assets. I must not transfer title
to any of the Principal's funds or other assets into my name alone.
My name must not be added to the title of any funds or other assets
of the Principal, unless I am specifically designated as Agent for
the Principal in the title.
I must protect and conserve, and
exercise prudence and caution in my dealings with, the Principal's
funds and other assets.
I must keep a full and accurate
record of my acts, receipts, and disbursements on behalf of the
Principal, and be ready to account to the Principal for such acts,
receipts, and disbursements at all times. I must provide an annual
accounting to the Principal of my acts, receipts, and disbursements,
and must furnish an accounting of such acts, receipts, and
disbursements to the personal representative of the Principal's
estate within 90 days after the date of death of the Principal.
I have read the Compensation of
Agent paragraph in the Power of Attorney and agree to abide by it.
I acknowledge that my authority to
act on behalf of the Principal ceases at the death of the Principal.
I hereby accept the foregoing
appointment as Agent for the Principal with full knowledge of the
responsibilities imposed on me, and I will faithfully carry out my
duties to the best of my ability.
This
day of , .
(Month) (Year)
Signature
(Address)
Note: A notarized signature is not
required unless the Principal initialed paragraph 3 or paragraph 4
regarding property transactions.
I,
, a Notary Public, do hereby certify that
personally appeared before me this date and acknowledge the due
execution of the foregoing Acceptance of Appointment.
Notary Public [Seal]
My Commission Expires:
______________
Natalie Thomas, State Legal
Services Developer
Department of Human Resources
Division of Aging Services
2 Peachtree Street, Suite 36.385,
Atlanta, Georgia 30303-3142
(404) 657-5258.
Revised October,1999
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