No one likes thinking about their own or their loved one’s potential incapacity. Unfortunately, many of us will likely find ourselves in need of a financial agent, or someone to step into our shoes and act on our behalf for all financial matters. Almost every day I drive on I-285 here in Atlanta (one of America’s deadliest freeways). Who knows when the day will come that I am struck by another motorist and end up in the Shepherd Center, alive but unable to handle my own affairs. One day I may be one of the over 5.7 million Americans who are living with dementia. At some point in the disease progression, it is necessary for someone else to handle the finances.
When thinking about planning for a potential incapacity, the Power of Attorney for Finances always comes up. Here are the top five things to know about the Power of Attorney in Georgia:
1. The POA is still the best first step in planning for incapacity.
A Power of Attorney is a legal document that allows you to name someone to handle your finances — taxes, bills, bank accounts, real estate sales — if you become incapacitated. This legal document is still the best way to plan for incapacity. It is far from perfect, and it still leaves some gaps in planning, but it is the best first step in planning for incapacity. Without a Power of Attorney in place, there may be no simple way for someone to access your financial accounts or handle your affairs. Many clients who come to us for Conservatorship, have to retain our services simply because a Power of Attorney was never created.
When looking for a Power of Attorney, you want one who is a “General Durable Power of Attorney.” “General” means that the powers covered in the document are broad, not limited. “Durable” means that the document will still be good even if you lose capacity.
2. Georgia updated the Power of Attorney laws in 2017.
Powers of Attorney are not “set it and forget it” documents. In addition to your situation and needs changing, the law changes. This happened just recently. The Georgia legislature changed our Power of Attorney laws on both July 1, 2017 as well as July 1, 2018. We became the 26th state to adopt the Uniform Power of Attorney Act.
It is important that your documents be updated to be in compliance with these new laws. There are extended protections for Georgians, but you can only take advantage of these protections if your Power of Attorney was signed after the laws were adopted. Click here to learn more about the Uniform Power of Attorney Act.
3. Banks may request their own POA forms.
Banks are still refusing to accept the new POA document. The Uniform Power of Attorney Act gave us more authority to compel banks to accept POAs, and it has worked, some. Banks, however, are leery of fraud and take every measure possible to protect themselves and their account holders. Unfortunately, this protection has been a barrier for many families caring for an incapacitated loved one. We still recommend that, when possible, you preemptively contact each of your financial institutions and complete their Power of Attorney form in addition to having a General Durable Power of Attorney form. This may be overdoing it, but this proactive step can save your loved ones.
4. The Social Security Administration and the Veterans Administration do not recognize POAs.
Many families are surprised and frustrated to learn that their POAs mean nothing to the Social Security Administration or the Veterans Administration. SSA requires that any potential agents apply to become a Representative Payee. You can learn more about the “rep payee” program here https://www.ssa.gov/payee/. The VA likewise has its own process for selecting financial agents, and they also do not accept any POAs. In the VA system, if a veteran is incapable of managing his or her finances, the VA will call for the appointment of a fiduciary. https://benefits.va.gov/fiduciary/. The appointment of a VA-Approved Fiduciary often delays benefits as the VA investigates the potential fiduciaries.
5. The Consumer Financial Protection Bureau created a resource for financial agents.
Many financial agents find the role of financial caregiving to be overwhelming and confusing. The Consumer Financial Protection Bureau created easy-to-understand tools to help caregivers manage a loved one’s money: Managing Someone Else’s Money guides. They have created a Georgia-specific guide here.
Planning for incapacity is an important part of estate planning. If you are ready to create a complete estate plan or need to review your existing plan, please contact Hurley Elder Care Law to arrange your consultation. We are available by phone (404) 843-0121 and through our website.