Georgia Durable Power of Attorney

Introduction

Key Things to Know

1. 1

   A durable power of attorney hands financial control to someone you choose. That person, your agent or attorney-in-fact, can act on your money, property, and business dealings for you. The durable part means the arrangement holds up even after you lose the ability to make your own decisions, which is normally the reason for creating one.

2. 2

   Georgia treats durability as the standard setting, not an add-on. Under O.C.G.A. 10-6B-4 your agent's authority carries through any later incapacity on its own, with no special wording required. The only time you insert durability language is when you want the opposite, a document that switches off the moment you become incapacitated.

3. 3

   Signing involves three people, not just a notary. O.C.G.A. 10-6B-5 asks for your signature (or that of an adult who signs at your direction while you watch), the attestation of one competent witness who is not your agent, and the attestation of a separate individual under O.C.G.A. 44-2-15 such as a notary public.

4. 4

   The witness and the notary cannot be one and the same. O.C.G.A. 10-6B-5 keeps those two attestation roles distinct, and it bars anyone named as your agent from serving in either seat.

5. 5

   Georgia gives you a fill-in statutory form. O.C.G.A. 10-6B-70 lays out a form you may copy, and the Georgia Department of Community Affairs publishes the official fillable version online. It reaches financial and property matters only and grants no authority over health-care decisions.

6. 6

   A short list of powers exists only if you spell them out. O.C.G.A. 10-6B-40 withholds authority to make gifts, to create or undo a trust, to alter survivorship or beneficiary designations, to hand the job to someone else, or to disclaim property unless your document expressly grants each one.

7. 7

   Putting it to work on real estate can send it to the courthouse. Georgia does not order the power of attorney recorded on its own, but a deed an agent signs must be attested under O.C.G.A. 44-2-15, and in practice the county has the power of attorney filed with the clerk of superior court where the land sits.

Georgia Requirements for Durable Power of Attorney

• Sign, Have One Witness, and Notarize

  Under O.C.G.A. 10-6B-5, the power of attorney must be signed by you (or by another adult in your presence at your express direction), attested by one competent witness who is not named as an agent, and attested by a separate individual under O.C.G.A. 44-2-15, such as a notary public. So three different people sign: you, one witness, and a notary.

• The Witness and the Notary Must Be Different People

  The one witness and the notary are two separate roles under O.C.G.A. 10-6B-5, and they may not be the same person. Neither the witness nor the notary may be named as an agent in the document. This is the financial power-of-attorney rule, not a health-care-directive rule.

• Durable by Default in Georgia

  Georgia makes a power of attorney durable by default. Under O.C.G.A. 10-6B-4 the document survives your incapacity unless it expressly provides that it terminates when you become incapacitated. You add language to make it non-durable, not to keep it durable.

• Effective When Executed, or Springing

  Under O.C.G.A. 10-6B-9 a Georgia power of attorney is effective when executed unless you provide that it becomes effective on a future date or event. If it springs on your incapacity and no one is named to determine it, a physician or licensed psychologist must certify the incapacity in writing.

• Georgia Statutory Form (O.C.G.A. 10-6B-70)

  You may use Georgia's statutory form power of attorney at O.C.G.A. 10-6B-70. The Georgia Department of Community Affairs hosts the official fillable version. It covers financial and property matters only and does not authorize health-care decisions.

• Record It for Real-Property Use

  Georgia does not impose a freestanding statewide rule that the power of attorney itself be recorded. When an agent uses it to execute a deed or other recordable instrument, that instrument must be attested by an officer under O.C.G.A. 44-2-15, and county practice generally records the power of attorney with the clerk of superior court in the county where the land lies.

• Special Powers Need Express Language

  Certain high-risk powers, sometimes called express-grant powers, are allowed only if your document specifically grants them. Under O.C.G.A. 10-6B-40 your agent may create, fund, amend, or revoke a trust, make a gift, change rights of survivorship or beneficiary designations, delegate authority, or disclaim property only when the document expressly says so.

• Revocation and Termination

  Under O.C.G.A. 10-6B-10 a Georgia power of attorney terminates when you revoke it or revoke the agent's authority, among other events such as your death. If the power of attorney was recorded, record the revocation too so it gives notice.