GEORGIA STATUTORY FINANCIAL POWER OF ATTORNEYInstructions and FormINTRODUCTIONThe General Assembly enacted the Uniform Power of Attorney Act during the 2017legislative session. Within this Act is a revised form for a power of attorney. While this newAct does not require that the new form be used, it does replace the former StatutoryFinancial Power of Attorney form previously in the law.The narrative that precedes the form, provides some guidance to understanding andinstruction for executing the new form. However, this guidance and instruction is not meantto replace any needed legal advice on the purpose, intent and use of this or any other legaldocument. Any power of attorney validly executed before July 1, 2017, remains effectiveunless and until the principal chooses to revoke it, it terminates automatically according tothe language of the power of attorney document or until a court of competent jurisdictionorders it terminated.A FINANCIAL POWER OF ATTORNEYThis document contains information about the "Statutory Financial Power of Attorney." Itallows you to name one or more persons to help you handle your financial affairs.Depending on your individual circumstances, you can give this person complete or limitedpower to act on your behalf. This document does not give someone the power to makemedical decisions or personal health decisions for you.EFFECT OF GIVING POWERS AWAYEven with this document, you may still legally make decisions about your own financialaffairs as long as you choose to or are able to. Talk to your Agent often about what youwant and what he or she is doing for you using the document. If your Agent is not followingyour instructions or doing what you want, you may cancel or revoke the document and endyour Agent's power to act for you.THIS DOCUMENT REFLECTS THE WISHES OF THE PRINCIPALDo not let anyone pressure you into making a financial power of attorney, naming an Agent,or granting a power unless it is your choice. If you do not understand any portion of thisdocument, you should ask a lawyer to explain it to you.
TABLE OF CONTENTSINSTRUCTIONS . 19 pagesDefinitions . 4Powers Not Affected . 5Durability of the Power of Attorney . 5What Constitutes a Power of Attorney . 5Construction of the Power of Attorney . 6Appointing Agents . 6How to Properly Execute the Power of Attorney . 6When the Power of Attorney Becomes Effective . 7Nomination of a Conservator . 7Validity of Other Forms . 8Termination of the Power of Attorney . 8When a Power of Attorney Terminates. 8Situations that Do Not Terminate the Power of Attorney . 9Power of Attorney Agents . 9Duties of the Agent . 9Authority to Make Gifts . 10No Authority to Create a Will . 11Disclosures by the Agent . 11Compensation of the Agent . 11Termination of the Agent’s Authority . 11Agent Not Liable . 11Loss of the Agent’s Liability Protection . 12Resignation of Agent . 12Accepting or Refusing a Power of Attorney Form . 12Request for Proof of Validity . 12Acceptance of Form Presented . 13Refusing a Power of Attorney Form . 13Immunity for Accepting Invalid Form . 14Actions to Take for Misconduct . 14Review of the Agent’s Conduct . 14Remedies for Violations . 15Breach of Fiduciary Duty . 15Wrongful Refusal to Accept Form. 15Criminal Liability . 15Defenses to Prosecution for Theft . 16Additional Information . 17Page 2 of 27
STATUTORY FORM . 8 pagesImportant Information . 1Designation of Agent . 2Successor Agent(s) . 2Grant of Authority . 2General . 2Specific. 3Authority to Act as HIPAA Representative . 3Limitation on Authority . 3Special Instructions . 3Effective Date . 4Nomination of Conservator . 4Reliance on Power of Attorney . 4Signatures and Acknowledgements . 5Agent Acknowledgment . 6Duties . 6Termination of Authority . 6Liability . 7Agent Certification Form . 8Signature and Acknowledgement . 8Page 3 of 27
DEFINITIONS'Agent' means a person granted authority to act in the place of an individual, whetherdenominated by such term, attorney-in-fact, or otherwise. Such term shall include a coagent, successor agent, and a person to which authority is delegated.'Durable' means not terminated by the principal's incapacity.'Electronic' means relating to technology having electrical, digital, magnetic, wireless,optical, electromagnetic, or similar capabilities.'Good faith' means honesty in fact.'Incapacity' means inability of an individual to manage property or business affairs becausethe individual:A. Has an impairment in the ability to receive and evaluate information or makeor communicate decisions even with the use of technological assistance; orB. Is:i.Missing;ii.Detained, including incarcerated in a penal system; oriii.Outside the United States and unable to return.‘O.C.G.A.’ means the Official Code of Georgia Annotated; the codified laws of the State ofGeorgia.'Person' means an individual, corporation, business trust, estate, trust, partnership, limitedliability company, association, joint venture, public corporation, government or governmentalsubdivision, agency, or instrumentality, or any other legal or commercial entity.'Power of attorney' means a writing or other record that grants authority to a person to actin the place of an individual, whether or not such term is used.'Presently exercisable general power of appointment,' with respect to property or aproperty interest subject to a power of appointment, means power exercisable at the time inquestion to vest absolute ownership in the principal individually, the principal's estate, theprincipal's creditors, or the creditors of the principal's estate. Such term shall include apower of appointment not exercisable until the occurrence of a specified event, thesatisfaction of an ascertainable standard, or the passage of a specified period only after theoccurrence of the specified event, the satisfaction of the ascertainable standard, or thepassage of the specified period. Such term shall not include a power exercisable in afiduciary capacity or only by will.'Principal' means an individual who grants authority to a person to act in the place of suchindividual.Page 4 of 27
'Property' means anything that may be the subject of ownership, whether real or personal,or legal or equitable, or any interest or right therein.'Record' means information that is inscribed on a tangible medium or that is stored in anelectronic or other medium and is retrievable in perceivable form.'Sign' means, with present intent to authenticate or adopt a record, to execute or adopt atangible symbol.'State' means a state of the United States, the District of Columbia, Puerto Rico, the UnitedStates Virgin Islands, or any territory or insular possession subject to the jurisdiction of theUnited States.'Stocks and bonds' means stocks, bonds, mutual funds, and all other types of securitiesand financial instruments, whether held directly, indirectly, or in any other manner. Suchterm shall not include commodity futures contracts and call or put options on stocks or stockindexes.POWERS OF ATTORNEY NOT AFFECTED BY THIS ACTThis new Act does not affect powers of attorney in the following situations:1) A power to the extent it is coupled with an interest in the subject of the power,including a power given to or for the benefit of a creditor in connection with a credittransaction;2) A power to make health care decisions;3) A proxy or other delegation to exercise voting rights or management rights withrespect to an entity;4) A power created on a form prescribed by a government or governmental subdivision,agency, or instrumentality for a governmental purpose;5) Transaction specific powers of attorney, including, but not limited to, powers ofattorney under Chapter 6 of this title; and6) Powers of attorney provided for under Titles 19 and 33.DURABILITY OF THE POWER OF ATTORNEYA power of attorney created under this chapter shall be durable unless it expressly providesthat it is terminated by the incapacity of the principal.WHAT CONSTITUTES A STATUTORY FINANCIAL POWER OF ATTORNEYThe term 'statutory form power of attorney' means using: The form set out in O.C.G.A. §10-6B-70; A military power of attorney pursuant to 10 U.S.C. Section 1044b, in effect onFebruary 1, 2017; orPage 5 of 27
A document that substantially reflects the language in the form set out in the law aslong as it is properly witnessed as required by Georgia law.CONSTRUCTION OF THE POWER OF ATTORNEYAPPOINTING AGENTS A principal may designate two or more persons to act as coagents. Unless the power of attorney otherwise provides, coagents shall exercise theirauthority independently of each other and do not have to be in agreement. A principal may designate one or more successor agents to act if an agent resigns,dies, becomes incapacitated, is no longer qualified to serve, or has declined to serve. A principal may grant authority to designate one or more successor agents toan agent or other person designated by name, office, or function. Unless the power of attorney otherwise provides, a successor agentshall: Have the same authority as that granted to the original agent;and Not act until all predecessor agents have resigned, becomeincapacitated, are no longer qualified to serve, have declined toserve, or died. Once a predecessor agent resigns, becomes incapacitated, is no longerqualified to serve, or has declined to serve, he or she shall bepermanently barred from serving as an agent under the then existingpower of attorney.HOW TO PROPERLY EXECUTE THE POWER OF ATTORNEYIn order for a power of attorney to be valid, it is required to be: Signed by the principal or by another individual in the principal's presence at theprincipal's express direction; Signed by one or more competent (being of sound mind and at least 14 years of age)witnesses Witnesses must attest (swear to or affirm) the principal’s actions in thepresence of the principal and each other; All signatures and attestations must be done in the presence of a notary public orother individual authorized by law to administer oaths who is not a witness; and The power of attorney document must be notarized.Page 6 of 27
WHEN THE POWER OF ATTORNEY BECOMES EFFECTIVE A power of attorney is effective when executed unless the principal provides withinthe power of attorney that it becomes effective at a future date or upon theoccurrence of a future event or contingency. If a power of attorney becomes effective upon the principal's incapacity and theprincipal has not authorized a person to determine whether the principal isincapacitated, or the person authorized is unable or unwilling to make thedetermination, the power of attorney shall become effective upon a certification in awriting or other record by: If a power of attorney becomes effective upon the occurrence of a future eventor contingency, the principal, in the power of attorney, may authorize one ormore persons to determine in a writing or other record that the event orcontingency has occurred.A physician or licensed psychologist determining that the principal has animpairment in the ability to receive and evaluate information or make orcommunicate decisions even with the use of technological assistance; orAn attorney at law, a judge, or an appropriate governmental officialdetermining that the principal is missing, detained, including incarcerated in apenal system, or is outside the United States and unable to return.A person authorized by the principal in the power of attorney to determine that theprincipal is incapacitated may act as the principal's personal representative pursuantto the Health Insurance Portability and Accountability Act, Sections 1171 through1179 of the Social Security Act, 42 U.S.C. Section 1320d, in effect on February 1,2017, and applicable regulations in effect on February 1, 2017, to obtain access tothe principal's health care information and communicate with the principal's healthcare provider.NOMINATION OF A CONSERVATOR IN THE POWER OF ATTORNEY A principal may nominate a conservator of the principal's estate for consideration bythe court as long as the power of attorney is in place before conservatorshipproceedings are begun and except for good cause shown or disqualification, thecourt shall make its appointment in accordance with the principal's most recentnomination. Unless the court orders otherwise, the appointment of a conservator or other fiduciaryshall terminate all or part of the power of attorney that relates to the matters withinthe scope of the conservatorship or management by another fiduciary.Page 7 of 27
If such power of attorney does not wholly terminate, the agent shall beaccountable to the conservator or other fiduciary as well as to the principal. If the court orders the power of attorney shall not terminate, the court mayimpose upon the power of attorney or agent such terms and conditions as itdetermines are in the best interest of the principal.VALIDITY OF OTHER POWER OF ATTORNEY FORMS Valid powers of attorney executed in this state that existed on June 30, 2017, shallcontinue to be valid after July 1, 2017. A power of attorney executed in other states will be valid in this state if, when thepower of attorney was executed, the execution complied with: The law in the state named in the power of attorney having jurisdiction or inthe absence of named state, in the state where executed; orThe requirements for a military power of attorney pursuant to 10 U.S.C.Section 1044b, in effect on February 1, 2017.Unless excepted by law, a photocopy or electronically transmitted copy of an originalpower of attorney has the same effect as the original; provided, When recording a power of attorney in connection with a conveyance (transferof ownership) involving real property, an original power of attorney shall beused.TERMINATION OF THE POWER OF ATTORNEYWHEN A POWER OF ATTORNEY TERMINATESA power of attorney shall terminate when:1. The principal dies;2. The principal becomes incapacitated, if the power of attorney specifically providesthat it is not durable;3. The principal revokes the power of attorney, provided that the principal provides theagent with notice of such revocation by certified mail and provided that such notice isfiled with the clerk of superior court in the county of domicile of the principal;4. The agent resigns, becomes incapacitated, or dies;5. The power of attorney provides that it terminates;6. The purpose of the power of attorney is accomplished; or7. One of the events specified in paragraph 3 or 4 of this subsection occurs and thepower of attorney does not provide for another agent to act under the power ofattorney.Page 8 of 27
SITUATIONS THAT DO NOT TERMINATE THE POWER OF ATTORNEYThese conditions will not automatically terminate a power of attorney or cause it to beineffective: Lapse in time between when the power of attorney was executed and the agent’s firstexercise of authority; Lack of actual knowledge of the termination by the agent or another person who actin good faith; For a power of attorney that is not durable, the incapacity of the principal of a powerof attorney without actual knowledge of the incapacity, when the agent or anotherperson acts in good faith under the power of attorney; or, The execution of a subsequent power of attorney unless the subsequent power ofattorney expressly states that the previous power of attorney shall be revoked or thatall other powers of attorney are revoked.POWER OF ATTORNEY AGENTSDUTIES OF THE AGENTA person accepts appointment as an agent under a power of attorney by exercisingauthority or performing duties as an agent or by any other assertion or conduct indicatingacceptance; unless otherwise stated in the power of attorney.An agent that has accepted appointment shall act: In accordance with the principal's reasonable expectations to the extent actuallyknown by the agent and, otherwise, in the principal's best interest;In good faith;Only within the scope of authority granted in the power of attorney;Loyally for the principal's benefit;So as not to create a conflict of interest that impairs the agent's ability to actimpartially in the principal's best interest;With the care, competence, and diligence ordinarily exercised by agents in similarcircumstances;With accountability by keeping a record of all receipts, disbursements, andtransactions made on behalf of the principal;Page 9 of 27
In cooperation with a person that has authority to make health care decisions for theprincipal to carry out the principal's reasonable expectations to the extent actuallyknown by the agent and, otherwise, act in the principal's best interest; andTo preserve the principal's estate plan, to the extent actually known by the agent, ifpreserving such plan is consistent with the principal's best interest based on allrelevant factors, including: The value and nature of the principal's property; The principal's foreseeable obligations and need for maintenance; Minimization of taxes, including income, estate, inheritance, generationskipping transfer, and gift taxes; and Eligibility for a benefit, a program, or assistance under a law or regulation.AUTHORITY OF THE AGENT TO MAKE GIFTSThe term a gift 'for the benefit of' a person includes a gift to a trust, an account under theUniform Transfers to Minors Act, and a tuition savings account or prepaid tuition plan asdefined under Internal Revenue Code Section 529, 26 U.S.C. Section 529, in effect onFebruary 1, 2017.Unless the power of attorney otherwise provides, language in a power of attorney grantinggeneral authority with respect to gifts shall authorize the agent only to:1. Make outright to, or for the benefit of, a person, a gift of any of the principal'sproperty, including by the exercise of a presently exercisable general power ofappointment held by the principal, in an amount per donee not to exceed theannual dollar limits of the federal gift tax exclusion under Internal RevenueCode Section 2503(b), 26 U.S.C. Section 2503(b), in effect on February 1,2017, without regard to whether the federal gift tax exclusion applies to thegift, or if the principal's spouse agrees to consent to a split gift pursuant toInternal Revenue Code Section 2513, 26 U.S.C. Section 2513, in effect onFebruary 1, 2017, in an amount per donee not to exceed twice the annualfederal gift tax exclusion limit; and2. Consent, pursuant to Internal Revenue Code Section 2513, 26 U.S.C. Section2513, in effect on February 1, 2017, to the splitting of a gift made by theprincipal's spouse in an amount per donee not to exceed the aggregate annualgift tax exclusions for both spouses.An agent may make a gift of the principal's property only as the agent determines isconsistent with the principal's objectives if actually known by the agent and, if unknown, asthe agent determines is consistent with the principal's best interest based on all relevantfactors, including:(1) The value and nature of the principal's property;(2) The principal's foreseeable obligations and need for maintenance;(3) Minimization of taxes, including income, estate, inheritance, generationskipping transfer, and gift taxes;Page 10 of 27
(4) Eligibility for a benefit, a program, or assistance under a law or regulation; and(5) The principal's personal history of making or joining in making gifts.NO AUTHORITY TO CREATE A WILLAn agent under a power of attorney is not authorized to create a will for the principal.DISCLOSURES BY THE AGENTAn agent is not required to disclose receipts, disbursements, or transactions conducted onbehalf of the principal unless required by the power of attorney document, ordered by acourt or requested by the principal, a guardian, a conservator, another fiduciary acting forthe principal, a governmental agency having authority to protect the welfare of the principal,or, upon the death of the principal, by the personal representative or successor in interest ofthe principal's estate. If so requested, the agent shall comply with the request within 30 days. If additional time is needed, the agent must provide a writing or other recordsubstantiating why additional time is needed and shall comply with the request withinan additional 30 days.COMPENSATION OF THE AGENTUnless the power of attorney otherwise provides, an agent is not entitled to compensationfor services rendered.An agent is entitled to reasonable reimbursement of expenses incurred in performing theacts required by the principal under the power of attorney.WHEN THE AGENT’S AUTHORITY TERMINATESAn agent's authority shall terminate when: The agent resigns, becomes incapacitated, or dies;The principal revokes the agent's authority, provided that the principal provides theagent with written notice of such revocation by certified mail and provided that suchnotice is filed with the clerk of superior court in the county of domicile (where he/shelives) of the principal;An action is filed for the dissolution or annulment of the agent's marriage to theprincipal or their legal separation, unless the power of attorney otherwise provides; orThe power of attorney terminates.(by a specified date or condition expressly stated inthe power of attorney in the Special Instructions)Page 11 of 27
THE AGENT IS NOT LIABLE An agent that acts in good faith shall not be liable to any beneficiary of the principal'sestate plan for failure to preserve such plan.An agent that acts with care, competence, and diligence for the best interest of theprincipal shall not be liable solely because the agent also benefits from the act or has anindividual or conflicting interest in relation to the property or affairs of the principal. If an agent is selected by the principal because of special skills or expertisepossessed by the agent or in reliance on the agent's representation that the agenthas special skills or expertise, the special skills or expertise shall be considered indetermining whether the agent has acted with care, competence, and diligenceunder the circumstances.Absent a breach of duty to the principal, an agent shall not be liable if the value of theprincipal's property declines.An agent that exercises authority to delegate to another person the authority granted bythe principal or that engages another person on behalf of the principal shall not be liablefor an act, error of judgment, or default of that person if the agent exercises care,competence, and diligence in selecting and monitoring the person.LOSS OF THE AGENT’S LIABILITY PROTOECTIONA provision in a power of attorney relieving an agent of liability for breach of duty shall bebinding on the principal and the principal's successors in interest except to the extent theprovision:(1) Relieves the agent of liability for breach of duty committed in bad faith, or withreckless indifference to the purposes of the power of attorney or the best interest ofthe principal; or(2) Was inserted as a result of an abuse of a confidential or fiduciary relationship with theprincipal.THE RESIGNATION OF THE AGENTUnless the power of attorney provides a different method for an agent's resignation, anagent may resign by giving notice to the principal.If the principal is incapacitated, notice of the agent’s resignation must be provided:1. To the conservator or guardian, if one has been appointed for the principal, and acoagent or successor agent2. If there is no conservator or guardian, coagent or successor agent, toa. The principal's caregiver; orb. Another person reasonably believed by the agent to have sufficient interest inthe principal's welfare.Page 12 of 27
ACCEPTING OR REFUSING A POWER OF ATTORNEY FORMREQUEST FOR PROOF OF VALIDITY OF A POWER OF ATTORNEYA person shall either accept a statutory form power of attorney or – Request a certification, a translation, or an opinion of an attorney as described aboveno later than seven business days after presentation of the power of attorney foracceptance; If a person requests a certification, a translation, or an opinion of an attorney asdescribed above, the person shall accept the power of attorney no later than fivebusiness days after receipt of the certification, translation, or opinion of an attorney.A person that is asked to accept a power of attorney may request, and rely upon, withoutfurther investigation:(1) An agent's certification under penalty of perjury of any factual matterconcerning the principal, agent, or power of attorney;(2) A coagent's certification under penalty of perjury of any factual matterconcerning the principal, agent, or power of attorney;(3) An English translation of the power of attorney if the power of attorneycontains, in whole or in part, language other than English; and(4) An opinion of an attorney as to any matter of law concerning the power ofattorney if the person making the request provides in a writing or other recordthe reason for the request.(NOTE: A form for the agent’s certification mentioned above is included in this information atthe end of the form for the power of attorney)ACCEPTANCE OF A POWER OF ATTORNEY FORM PRESENTE
GEORGIA STATUTORY FINANCIAL POWER OF ATTORNEY Instructions and Form INTRODUCTION The General Assembly enacted the Uniform Power of Attorney Act during the 2017 legislative session. Within this Act is a revised form for a power of attorney. While this new Act does not require that the new form be used, it does replace the former Statutory .File Size: 423KB
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