07/13/2017
To help you and loved ones grapple with 21st Century control and access issues, Georgia has a new Power of Attorney statute. It’s powerful if you enable it. Here’s why and how.
Imagine: you wake up and realize that (a) you’re lying flat, (b) the ceiling over you isn’t in your bedroom, (c) something’s beeping, (d) something tall and spiky next to you has Baggies hanging on it, and (e) through your toes you can see a whiteboard which says “Your nurse today is Mabel.”
Worse, you can’t call out for Mabel, and you can’t . . . reach . . that . . . button . . . to page her.
But you’re not dead, you realize. That’s encouraging.
You also realize your financial planner is there, asking you whether you want to buy or sell. Your real estate agent is holding a pen and a contract, but you can’t grasp them. You notice a bunch of envelopes stamped “Past Due” on the tray table.
And you can’t do anything about any of these.
Segue: to the new Georgia Financial Power of Attorney statute.
If you’ve signed a FPOA before July 1, it continues in effect, and you may not need any of the new features.But you might want to gauge what’s now available, and why some new protections are provided for. They’re there to protect you.
For example, so many old FPOAs we see won’t go into effect until your regular doctor signs off that you’re disabled, and never mind what your spouse might think. These days, who’s your “regular” doctor anyway?
(These same forms go on to say that if your doctor isn’t available, then a committee of doctors – who may or not have any idea who you are – get to decide if you’re disabled. Like the old commercials used to say: “Nine out of ten doctors agree . . . .”)
So if you don’t really remember what you signed, or even who you named, it’s worth checking on your current FPOA.
Some things in the new statute are significant.
First, you can no longer be hung out to dry by a reluctant bank or other financial institution.
Some of them would refuse to obey a genuine-Georgia old-form perfectly-valid FPOA; they wanted a FPOA on their own form. (Mainly because their in-house version always said you indemnified them in case they get sued for honoring it).
Other examples? One bank recently said they wouldn’t honor an FPOA because it hadn’t been signed in the past six months – a totally groundless excuse. Other financial institution employees flat-out refuse to honor any valid FPOA, and suggest you go talk to the manager, the vice-president, and so forth, until you get tired of trying.
Under the new statute, this isn’t going to happen to your hapless, helpless Agent who needs to get started.
The new Georgia statute sets a deadline.If an FPOA is presented to a bank, they have seven days to accept it. If they don’t, they’d better ask for a certification, a translation, an attorney’s letter, and once they have that, they have five days to get with it.
Otherwise the institution can be responsible for attorneys’ fees and litigation costs.
What else is new and worth having?If the FPOA doesn’t go into effect until some future event, now there’s a process to certify that the event happened. It’s easier than it sounds.
And what about judging when the FPOA signer is “incapacitated” (a much better word than “disabled”)? Now we have a definition, and it is wonderfully comprehensive. “Incapacity” is the
“inability of an individual to manage property or business affairs because the individual has an impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological decisions.”
The term also covers if a person is missing, or detained somewhere, or in prison, or is outside the United States and is unable to return.
And all it takes is a certification of one of those circumstances to get the FPOA rolling.
Other explicit new provisions: an FPOA can give the power to the Agent to change beneficiary designations, delegate actions to others, and “exercise authority over the content of electronics communications.” That’s refreshing.
And in plain English, the Agent must provide for “The principal’s foreseeable obligations and need for maintenance” which includes the “minimization of taxes.”
There’s much more.But frankly, the statute is boring to read. The new Financial Power of Attorney you’ll get is boring, too. So is your old one.
However: nothing’s boring if you’re trapped in that bed, peering up at the ceiling, and wondering if you can survive financially while you can’t communicate and your Agent doesn’t have the right powers.
