If you’re considering creating an estate plan, you may have heard about the importance of naming a Power of Attorney. A Power of Attorney can help manage finances, assist with legal transactions, and even help make decisions regarding your medical care. While this authority may seem broad, there are some things that a Power of Attorney can’t do.
Financial Power of Attorney
A Financial Power of Attorney enables a person to act on someone else’s behalf in case of incapacity or disability. This type of Power of Attorney can help manage the principal’s financial affairs, including bank accounts, credit cards, investments, debt collection, digital assets, and other matters. They can also help with legal issues, such as file taxes, apply for public benefits (ex: Medicaid, Veteran’s benefits), or supervise real estate transactions.
While the Power of Attorney does have broad authority to help manage financial and legal issues, there are some things that they aren’t allowed to do. A Financial Power of Attorney cannot:
- Break their fiduciary duty or act against an individual’s best interest
- Borrow money from or add their name to principal’s bank account
- Create, change, or override someone’s Last Will & Testament or living trust
- Transfer or change the Power of Attorney
- Make medical or health care decisions
- Make financial or legal decisions for someone after they’ve died. (The Power of Attorney’s authority ends when the principal passes away).
It’s important to note that having a Financial Power of Attorney in place doesn’t mean that someone is taking over the principal’s financial and legal rights. It just means that a second person can assist with those tasks and responsibilities. Also, under Georgia law, spouses and adult children do not have automatic Power of Attorney for their loved ones. The principal needs to fill out the appropriate paperwork and name their spouse or child as their Power of Attorney. Unlike other states, in Georgia, a divorced spouse is not automatically removed from the Power of Attorney paperwork – the principal needs to update those documents themself.
Medical Power of Attorney
A Medical Power of Attorney, also known as a Medical Decisionmaker, is the person authorized to act on someone’s behalf if they are injured or too sick to consent to medical treatment for themselves. A Medical Power of Attorney can help make decisions about what medical care the principal will receive (ex: surgery, home health, hospice, psychiatric), what doctors or care providers will treat them, where the principal will live (ex: assisted living, long-term care, memory care), what the principal eats, and who is responsible for their bathing.
There are some things outside the scope of the medical decisionmaker’s role or responsibilities, including:
- Making medical or health care decisions that are outside the principal’s financial means
- Refusing certain types of medical treatment
- Making medical decisions that directly contradicts the principal’s Advance Directive for Healthcare
- Making financial or legal decisions
- Making any decisions for someone after they’ve died. (The Power of Attorney’s authority ends when the principal passes away).
An individual names their Medical Power of Attorney, or Medical Decisionmaker, as part of their Advance Directive for Health Care. An Advance Directive is legal paperwork that memorializes your medical preferences (ex: testing, treatment, care options), identifies your Medical Power of Attorney, and puts your doctor on notice about your health care choices. Under Georgia Law, a spouse or adult child may have some automatic medical decision-making authority, but it’s still a good idea for the principal to name their loved one(s) in their Advance Directive.
Have Additional Questions? Contact Brian M. Douglas & Associates
A Financial Power of Attorney and Medical Power of Attorney are some of the key documents that every estate plan should include. If you have questions about the roles and responsibilities of a Power of Attorney, or if you’d like to schedule an estate planning consultation, please reach out to us at (770) 933-9009 or via our online contact page. Our estate planning team would be happy to help.