A Power of Attorney (POA) is an essential legal tool that allows an individual (the principal) to delegate decision-making power to another person or entity (the agent). As part of comprehensive estate planning in Georgia, understanding the duration and termination of a POA is paramount. The lifespan of a POA largely depends on its type - whether it's a durable, springing, limited, or medical POA - and the specific conditions outlined within the document.
A Power of Attorney generally lasts as long as specified in the document:
Generally, in Georgia, the duration of a POA is determined by the terms set forth within the document. This means that the POA can be set to expire on a specific date, upon the occurrence of a certain event, or when the principal becomes incapacitated or deceased. The principal can define these conditions at the time of drafting the POA to accommodate their specific needs.
Different types of Power of Attorney have different durations:
Understanding the various types of POAs and their respective expiration rules is critical. Each type of POA has distinct characteristics and expiration rules.
- Durable Power of Attorney: This type of POA remains in effect even if the principal becomes mentally incapacitated. For example, if the principal is diagnosed with dementia, the durable POA would continue to be effective, permitting the agent to make decisions on their behalf. However, like all POAs, it ceases to be effective upon the principal's death.
- Springing Power of Attorney: A springing POA only becomes active under specific conditions, typically the principal's incapacitation. For instance, if a principal becomes incapacitated due to an accident, the springing POA would come into effect, allowing the agent to make crucial decisions. The POA becomes invalid when the principal regains capacity, unless otherwise stated in the agreement.
- Limited Power of Attorney: Also referred to as a special POA, it is used for a specific purpose or for a limited period. If a principal is unable to handle certain affairs because of their absence or incapacity, a limited POA could be used. Once the specific task is completed or the duration is over, the POA automatically ends.
- Medical Power of Attorney: This type of POA authorizes the agent to make medical decisions for the principal if they become unable to do so. This POA expires when the principal dies, revokes the POA, or regains the ability to make their own decisions.
Having a grasp of these different types of POAs and their respective expiration rules can assist individuals and their appointed agents to navigate the legal landscape of power of attorney in Georgia more effectively.
Revocation of a Power of Attorney:
If a principal chooses to revoke a POA before its stated expiration date, they must adhere to certain legal procedures under Georgia law. Revoking a POA isn't as simple as deciding one day that the agreement is over. It requires a proper understanding of legal procedures to ensure that all responsibilities are appropriately terminated.
- The principal must draft a written notice of revocation. This document should include the principal's name, the agent's name, and the date the original POA was executed. This document must be signed and dated by the principal.
- The principal should then deliver this revocation notice to the agent. This can be done in person or through certified mail with return receipt requested, to ensure proof of delivery. It is also recommended to notify any third parties (like banks or other financial institutions) that may have been dealing with the agent under the authority of the POA.
Once these steps are completed, the revocation is generally effective immediately, and the agent no longer has the authority to act on behalf of the principal. However, in some cases, such as with a durable POA, the principal may need to record the revocation at the local county recorder's office where the original POA was filed.
It's important to note that if the principal is mentally incapacitated, they cannot legally revoke a POA. In such a case, a court may need to intervene to determine the validity of the revocation. If you are considering revoking a POA, it's always recommended to consult with an experienced lawyer to guide you through the process in compliance with Georgia law.
Power of Attorney after the principal's death:
Upon the principal's death, the POA generally becomes null and void. The agent does not have the authority to handle the deceased's estate. This responsibility falls to the executor named in the deceased's will or to the administrator appointed by the probate court if no will exists.
The executor or administrator's role begins upon the principal's death, whereas the agent's role ends. The executor or administrator is responsible for gathering the deceased's assets, paying off any debts or taxes, and distributing the remaining assets to the beneficiaries as specified in the will, supervised by the probate court.
Trustees, on the other hand, are individuals or entities appointed to manage a trust set up by the principal. Unlike a POA or executor, a trustee's role does not necessarily end with the death of the principal. Instead, their responsibilities continue as defined in the terms of the trust agreement, which may include distributing the trust's assets to beneficiaries.
In some instances, the agent may also be named as the executor or trustee. In such cases, their responsibilities could extend beyond the principal's death, but their role changes. As an executor or trustee, they are no longer acting under the authority of the POA but rather under the authority of the will or trust agreement.
