Power of attorney, health care directive and guardianship in Georgia

Financial power of attorney in Georgia

Law and official form

Law

Georgia Uniform Power of Attorney Act

Uniform Power of Attorney Act

Yes (effective July 1, 2017)

Official form

Georgia Statutory Financial Power of Attorney - Instructions and Form (O.C.G.A. § 10-6B-70)Published by Georgia General Assembly

You do not have to use it.

The Act does not require you to use the form; a document substantially in this form, or another document that meets the signing rules, may be used. The form covers property and money only, not health care. The 2018 version has one witness line plus a notary block, and an Important Information for Agent page.

Law: O.C.G.A. § 10-6B-1 et seq. (2017 H.B. 221; O.C.G.A. §§ 10-6B-20, 10-6B-70 (as amended by 2018 H.B. 897)

Signing rules

How to sign

Sign the power of attorney, or have someone sign it for you in your presence at your express direction. It must be attested in your presence by one competent witness and by a notary public (or other person authorized to administer oaths). The notary cannot also be the witness, and neither of them may be named as your agent.

Who signs

Signed by you, or by another person in your presence at your express direction.

Notary

Required

Witnesses

1

Who cannot witness

One competent witness, who cannot be someone named as an agent in the power of attorney. A notary public (or other person authorized to administer oaths) must also attest your signature; the notary cannot be the witness and cannot be named as an agent. The witness and notary attest only your signature (or the signature of the person signing for you).

Agent's acknowledgment

No agent signature is required. A person accepts the job of agent by acting as agent or by other conduct showing acceptance, unless the document says otherwise.

Law: O.C.G.A. § 10-6B-5 (as amended by 2018 H.B. 897)

Durable and springing

Is it durable?

A power of attorney under the Act is durable (keeps working if you become incapacitated) unless it expressly says it ends on your incapacity.

Law: O.C.G.A. 10-6B-4

Durable unless it says otherwise?

Yes: it continues if you lose capacity unless it says otherwise.

Starting later (springing)

A power of attorney takes effect when signed unless it says it starts on a future date or event. If it starts on your incapacity and you have not named someone to decide this, it starts when a physician or licensed psychologist certifies in writing that you cannot receive and evaluate information or make or communicate decisions, or when a lawyer, judge or government official certifies that you are missing, detained or outside the U.S. and unable to return.

Law: O.C.G.A. Chapter 6B of Title 10

Source: 2017 DHS instructions

What an agent can and cannot do

Needs express permission

• Create, fund, amend, revoke or end a living (inter vivos) trust
• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Authorize another person to exercise the agent's authority
• Waive your right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
• Exercise fiduciary powers you have authority to delegate (the power of attorney must clearly identify them)
• Exercise authority over the content of your electronic communications
• Renounce an interest in property, including a power of appointment

No power of attorney can

No power of attorney can authorize an agent to make or revoke a will or codicil for you, make an affidavit about your personal knowledge, or vote for you in a public election. Unless the power of attorney says otherwise, an agent who is not your ancestor, spouse or descendant may not use your property to give themselves, or someone they must support, an interest in it. A general gift power is limited to the federal annual gift tax exclusion amount per person.

Law: O.C.G.A. 10-6B-40(h); O.C.G.A. 10-6B-40(b); O.C.G.A. 10-6B-56

Law: O.C.G.A. § 10-6B-40(a), (b) (as amended by 2018 H.B. 897)

Agent duties, pay and court review

Agent duties

• Act according to your reasonable expectations, if known, and otherwise in your best interest
• Act in good faith and only within the authority granted
• Act loyally for your benefit and avoid conflicts of interest
• Use the care, competence and diligence ordinarily used by agents
• Keep a record of all receipts, payments and transactions
• Cooperate with your health care agent
• Preserve your estate plan if known and in your best interest
• Give an accounting within 30 days when you, a guardian or conservator, a protective agency, or (after death) your personal representative asks

Agent pay

Unless the power of attorney says otherwise, the agent is not entitled to pay for services, but is entitled to reasonable reimbursement of expenses.

Asking a court to review an agent

You, the agent, a guardian or conservator, your health care agent, your spouse, parent or descendant, a presumptive heir, a beneficiary, a government protective agency, your caregiver or another person with sufficient interest, or a person asked to accept the power of attorney can ask a court to interpret it or review the agent's conduct. If you ask, the court must dismiss the petition unless it finds you lack capacity to revoke the power of attorney. A court may order the principal to repay reasonable attorney's fees of those who brought the petition when the agent is found to have violated the Act.

Law: O.C.G.A. 10-6B-16; O.C.G.A. 10-6B-16(b)

Law: O.C.G.A. § 10-6B-14

When it ends and how to revoke it

It ends when

• You die
• You become incapacitated, if the document says it is not durable
• You revoke it or the agent's authority
• The agent resigns, becomes incapacitated or dies, or you revoke the agent's authority, and no other agent is named
• The document says it ends
• Its purpose is accomplished
• An action is filed for divorce, annulment or legal separation from an agent who is your spouse
• A court appoints a conservator for you, for matters within the conservatorship, unless the document or the court says otherwise

Divorce ends a spouse's authority

Yes · Divorce rules in Georgia (Divorce Law Map)

How to revoke

You can revoke your power of attorney or an agent's authority. Since 2018, Georgia law does not require a particular method. You may send the agent notice of the revocation by certified mail or statutory overnight delivery and file that notice, with proof the agent received it, with the clerk of superior court in the county where you live, to establish that the agent knew of the revocation. A new power of attorney revokes an earlier one only if it says so.

Telling others

Also tell banks and others who have a copy. An agent or other person who acts in good faith without actual knowledge that the power of attorney or the agent's authority has ended is protected, and the act binds you.

Law: O.C.G.A. §§ 10-6B-8(b), 10-6B-10 (as amended by 2018 H.B. 897); O.C.G.A. § 10-6B-10(a), (b), (d), (f), (g) (as amended by 2018 H.B. 897)

Banks, other states and real estate

Banks and other businesses

A person must accept an attested statutory form power of attorney, or within 7 business days ask for an agent's certification, a translation or a lawyer's opinion, and then accept it within 5 business days after receiving it, unless a legal reason to refuse applies (for example, good-faith belief it is invalid, or a report of suspected abuse to protective services). A person may not demand a different form. Someone who wrongly refuses can be ordered by a court to accept it and must pay reasonable attorney's fees and litigation costs. A photocopy or electronically sent copy has the same effect as the original.

Law: O.C.G.A. 10-6B-19, 10-6B-20; O.C.G.A. 10-6B-6(c)

Signed in another state

A power of attorney signed in another state is valid in Georgia if its signing followed the law of the state named in it (or, if none is named, where it was signed), or the federal military power of attorney rules.

Law: O.C.G.A. 10-6B-6(b), 10-6B-7

Real estate

When a power of attorney is recorded in connection with a transfer of real property, it must be in a form that meets Georgia's requirements for recording deeds.

Law: O.C.G.A. 10-6B-6(c), referring to Part 1 of Article 1 of Chapter 2 of Title 44

Health care directive in Georgia

The document and its form

Document

Georgia Advance Directive for Health Care

Official form

Georgia Advance Directive for Health Care (O.C.G.A. Chapter 32 of Title 31)Published by Georgia Department of Human Services, Division of Aging ServicesVersion: Revised May 2010 (booklet with instructions and form)

You do not have to use it.

Living will

Part Two: Treatment Preferences (Georgia Advance Directive for Health Care)

Part of the directive.

Since July 1, 2007, Georgia uses one combined form instead of separate living will and durable power of attorney for health care forms. Part Two records your wishes about life support and artificial nutrition and hydration if you are in a terminal condition or a state of permanent unconsciousness, as certified by your attending physician and a second physician. Living wills and health care powers of attorney signed before July 1, 2007 remain valid until revoked.

Law: O.C.G.A. Chapter 32 of Title 31; O.C.G.A. § 31-32-9

Signing rules

How to sign

Sign and date the advance directive, or acknowledge your signature, in front of two qualified adult witnesses, who also sign. It does not need to be notarized. A copy of a validly signed directive has the same effect as the original.

Who signs

Signed and dated by you (age 18 or older, or an emancipated minor, and of sound mind), or by another person at your express direction.

Notary

Not required

Witnesses

2

Who cannot witness

Two witnesses who are of sound mind and at least 18. A witness cannot be your health care agent or back-up agent, cannot knowingly inherit from you or gain financially from your death, and cannot be directly involved in your health care. Only one witness may be an employee, agent or medical staff member of the hospital, skilled nursing facility, hospice or other facility where you receive care. The witnesses do not have to be together or see you sign, but you must sign or acknowledge signing in their presence.

Nursing facilities and special settings

If you are receiving care in a health care facility, only one of the two witnesses may be an employee, agent or medical staff member of that facility, and that witness cannot be directly involved in your care.

Law: O.C.G.A. Chapter 32 of Title 31

Who can be your agent and what the agent can do

Who cannot be your agent

A physician or other health care provider directly involved in your health care may not serve as your health care agent.

Law: O.C.G.A. Chapter 32 of Title 31

Source: form Part One

When the agent starts

The directive takes effect only if you are unable, or choose not, to make or communicate your own health care decisions, unless you initial a different start or end date or event in Part Four.

Source: form Part Four

Decisions an agent cannot make

A health care agent may not consent to psychosurgery, sterilization, or involuntary hospitalization or treatment under the Mental Health Code. The agent may not make decisions that contradict yours and must follow your known wishes, or else your best interests.

Law: Title 37; O.C.G.A. Chapter 32 of Title 31

Source: DHS guide

Revoking and conflicting documents

Revoking your agent

You can revoke the directive, including the naming of an agent, at any time regardless of your mental state: by signing a new advance directive, by destroying it, by a written statement of revocation, or by saying you revoke it in front of an adult witness who confirms it in writing within 30 days. An oral revocation takes effect when your treating physician records it in your medical record.

Revoking your instructions

The same methods revoke your treatment preferences. Marrying after you sign revokes the naming of any agent other than your new spouse.

Telling others

Tell your doctors, health care facilities and anyone who has a copy.

Divorce ends a spouse's authority

Yes · Divorce rules in Georgia (Divorce Law Map)

Conflicting documents

Completing the Georgia Advance Directive for Health Care revokes and replaces any advance directive, durable power of attorney for health care, health care proxy or living will you signed before it.

Source: form Part Four

Law: O.C.G.A. Chapter 32 of Title 31

If you have no directive

Who decides without a directive

Georgia law lists the people who may consent to medical treatment for an adult who cannot consent. If none of them is available or able to consent, a probate court can appoint a temporary medical consent guardian.

Law: O.C.G.A. § 31-9-2

Source: Georgia Probate Court Standard Form GPCSF 36

Law: O.C.G.A. § 31-9-2; O.C.G.A. Title 29, Chapter 4, Article 2

Other states, registry and medical orders

Signed in another state

Advance directives made in other states are recognized in Georgia (DHS, Alternatives to Guardianship with Advance Directives).

Guardianship and conservatorship in Georgia

What guardianship or conservatorship is

What it is called

Guardian (of the person), conservator (of property); emergency guardian or conservator; temporary medical consent guardian

When a court may appoint one

The petitioner must prove by clear and convincing evidence that the adult lacks sufficient capacity to make or communicate significant responsible decisions about their health or safety (for a guardian) or about managing their property (for a conservator). Georgia law tells probate judges to encourage self-reliance and independence and to consider less restrictive alternatives first.

Law: O.C.G.A. §§ 29-4-1, 29-5-1

Kinds

• Guardian of an adult
• Conservator of an adult
• Emergency guardian or conservator
• Temporary medical consent guardian

Law: O.C.G.A. §§ 29-4-1, 29-4-10, 29-5-1, 29-5-10

Who can ask, which court and your own choice

Who may ask

Any interested person may file. Unless there are two or more petitioners, the petition must include an affidavit from a physician, licensed psychologist or licensed clinical social worker who examined the proposed ward within 15 days before filing.

Source: GPCSF 12 instructions

Court

Probate court of the county, generally where the proposed ward lives.

Law: O.C.G.A. Title 29, Chapters 4, 5 and 11

Choosing your own

You can nominate a conservator in your financial power of attorney; the court must follow your most recent nomination unless there is good cause or disqualification. Part Three of the Georgia Advance Directive for Health Care lets you nominate a guardian.

Law: O.C.G.A. 10-6B-8(a)

Effect on a power of attorney

Unless the power of attorney or the court says otherwise, appointing a conservator ends the parts of a power of attorney that cover matters within the conservatorship; if any part continues, the agent must account to the conservator as well as to you. An advance directive for health care stays in effect after a guardian is appointed unless the court specifically orders otherwise.

Law: O.C.G.A. 10-6B-8(b)

Source: DHS guide

Cost, fee waiver and forms

Forms

• GPCSF 12 Petition for the Appointment of a Guardian and/or Conservator for a Proposed Ward
• GPCSF 11 Petition for the Appointment of an Emergency Guardian and/or Conservator
• GPCSF 36 Petition for the Appointment of a Temporary Medical Consent Guardian
• GPCSF 58 Adult Conservatorship Inventory and Asset Management Plan
• GPCSF 65 Petition for Termination of Guardianship/Conservatorship and Restoration of Rights

Steps

Steps

Other options and where to report abuse

Supported decision-making

Georgia has no supported decision-making law.

Less restrictive options

• Georgia Advance Directive for Health Care: Names a health care agent, records treatment wishes and can nominate a guardian.
• Do not resuscitate order: A medical order about CPR, signed by a physician with consent.
• Durable financial power of attorney: Names an agent for money and property.
• Living trust: Property is held and managed in a trust.
• Supported decision-making: Trusted supporters help the person reach their own decisions.

Report abuse or exploitation

Georgia DHS Division of Aging Services, Adult Protective Services · 1-866-552-4464

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Law: O.C.G.A. § 29-4-1(f)

Good to know in Georgia

• Since 2018, a Georgia financial power of attorney needs one witness and a notary; the notary cannot be the witness, and neither can be named as your agent.

  Law: O.C.G.A. 10-6B-5, as amended by 2018 H.B. 897

• Georgia law no longer requires certified mail to revoke a power of attorney, but you may send notice by certified mail or statutory overnight delivery and file it with the superior court clerk to prove the agent knew.

  Law: O.C.G.A. 10-6B-10(g)

• No power of attorney can let an agent make or revoke your will, or vote for you.

  Law: O.C.G.A. 10-6B-40(h)

• The Georgia Advance Directive for Health Care needs two witnesses but no notary.

  Law: O.C.G.A. Chapter 32 of Title 31

  Source: DHS form

Questions about powers of attorney in Georgia