Disclaimer: This article is for informational purposes only and does not constitute legal advice. Always consult a licensed attorney in Georgia for guidance tailored to your situation.
Detailed Answer
When an elderly heir needs help managing personal or financial affairs, Georgia law offers several legal tools: a power of attorney, an advance health care directive, or guardianship. Each option carries distinct requirements and implications.
1. Power of Attorney
A power of attorney (POA) allows a competent adult (the principal) to appoint an agent to act on their behalf. Georgia recognizes durable powers of attorney that remain effective if the principal later becomes incapacitated. Key features include:
- Execution: The principal must sign the document in the presence of two witnesses and a notary public. See Ga. Code Ann. Title 10, Ch. 6A.
- Scope: You may grant broad financial powers or limit authority to specific tasks, such as paying bills or managing real estate.
- Health Care Decisions: A separate health care power of attorney covers medical treatment choices. See Ga. Code Ann. Title 31, Ch. 9.
- Revocation: The principal can revoke a POA at any time if they remain mentally competent.
2. Advance Health Care Directive
An advance directive documents an individual’s wishes for medical treatment if they cannot communicate. It includes a living will and the appointment of a health care agent. This tool does not grant financial authority but ensures health care preferences guide decision-making.
3. Guardianship
If an elderly person lacks capacity and did not appoint an agent, interested parties may petition the probate court for guardianship. A guardian can manage personal care (guardian of the person) or finances (guardian of the estate).
- Filing a Petition: File in the county probate court where the person resides. The court requires a physician or psychologist’s evaluation of capacity. See Ga. Code Ann. Title 29, Ch. 2.
- Court Hearing: The proposed ward has the right to notice and counsel. The judge assesses incapacity and necessity.
- Guardian’s Duties: The guardian must submit an annual care plan and financial account to the court.
- Least Restrictive Alternative: Courts prefer limited guardianship tailored to the ward’s needs before granting full authority.
4. Other Options
• A trust can hold assets and authorize a trustee to manage them without court supervision.
• A Social Security representative payee may handle federal benefits for an incapacitated beneficiary.
Helpful Hints
- Obtain a professional capacity evaluation to guide your choice.
- Start with the least restrictive tool, such as a limited POA, before seeking guardianship.
- Keep detailed records of all financial transactions and health care decisions.
- Review and update documents periodically to reflect changing needs.
- Work with an elder law or probate attorney to navigate court procedures and filings.