No, children do not have automatic power of attorney over their parents in the event of their death. They would need their parents to authorize it.
Recently, I had a friend ask me about a Power of Attorney for her parent. Her father was in the hospital, and she needed to take care of a few things for him (ex: check his P.O. box, pay his utility bills, purchase some medical equipment on his behalf, etc.). She asked me if adult children have automatic Power of Attorney for their parents. But, unfortunately, the answer is no. If you want or need to do something that requires a Power of Attorney, then you actually need your parent to authorize it.
Financial Power of Attorney
A Financial Power of Attorney is a legal document that enables a person to act on another person’s behalf, in the event of their incapacity or disability. A Power of Attorney can help manage another person’s financial and legal affairs, including their bank accounts, credit cards, real estate transactions, digital assets, and other matters. In other words, a Power of Attorney can help keep someone’s financial and business matters running, even when the other person is not able to.
Having a Power of Attorney doesn’t take away someone’s legal rights; it just authorizes a second person to help with these tasks and decisions. The person creating that POA, called the principal, can choose when the legal document goes into effect (ex: immediately, at a certain future date, only in specific circumstances); however, these powers end at the principal’s death. A Power of Attorney terminates at death because the person who created the legal document is no longer there to give you the authority to act on their behalf.
While many people choose their spouse or their adult child to serve as their Power of Attorney, under Georgia law, these individuals do not have automatic Power of Attorney. The individual still needs to fill out the legal paperwork and name their adult child or spouse. Without a Power of Attorney in place, no one can manage the principal’s financial or legal matters unless the court appoints a conservator or guardian – and that appointed person may not turn out to be the spouse or child.
Medical Power of Attorney
While we’re on the subject of spouses, adult children, and Powers of Attorney, we should also discuss the medical decisionmaker in your advance directive for healthcare. Under Georgia law (OCGA 31-9-2), if a person is unable to consent to medical treatment for themselves, his or her named medical decision-maker, spouse, or adult child can consent to treatment on their behalf. So, while a spouse or child would likely be able to consent for their loved one, it does help to have an Advance Directive for Health Care in place.
An Advance Directive is similar to a Medical Power of Attorney; the paperwork authorizes someone to speak for you and make the medical choices that you would want. An Advance Directive memorializes a person’s healthcare preferences in detail (ex: treatment, testing, care options) and also identifies a Medical Power of Attorney (also known as a health care agent, health care proxy, or medical decisionmaker). It puts hospitals, doctors, and other family members on notice – and is only used if the person is unable to communicate their own wishes due to illness or incapacity. Without a medical decisionmaker in place, a spouse or an adult child may have some default access and decision-making authority, but they could face some obstacles in looking at the patient’s medical records or speaking with their doctors. For more on advance directives and medical decisionmakers, you can read our blogs Navigating the Georgia Advance Directive and Choosing Your Medical Decisionmaker.
Next Steps to Consider
Now that you know about the different types of Powers of Attorney and that they need to be in place for you to make decisions on behalf of your loved one, what should you do?
It’s important to know that the principal—the person who is authorizing someone to act as their Power of Attorney—is the one who needs to begin the process of creating these documents. They would be the client in this situation, not the agent (the person authorized as POA). It’s okay to call attorneys on their behalf, as many parents want their kids to “handle it” for them, but the principal needs to be involved and aware. We always recommend talking to your loved one well in advance of talking to an attorney.
Communication is key. We know it can feel awkward to have these conversations with your parent, but a little awkwardness now can prevent a major headache later.
Here are some helpful tips for you as you begin the conversation with your loved one:
- Explain to them your concerns. You understand that if something were to happen to them and they become incapacitated, they need documentation in place allowing you, or another person, to take care of their financial and medical affairs while they are unable to do so themselves.
- Understand it’s really important for them to be involved in the initial conversations with their attorney. The principal is the ultimate decision maker and should be given agency to make decisions they feel are best for their situation. Having an experienced attorney guide them will give everyone peace of mind.
- Know that their attorney may need to speak to them without you present. It isn’t that they don’t trust you, we promise. They understand that you’re trying to help your loved one! The attorney just needs to confer with their client to make sure their wishes are being met.
Contact the Experienced Estate Planning Team at Siedentopf Law
Fortunately for my friend, her father recovered and is back home. But this was definitely a wake-up call for her family: if you want someone in place to help with financial, legal, and medical decisions – you need a Power of Attorney authorizing it. If you have additional questions about a Financial Power of Attorney, a Medical Power of Attorney, or if you would like to schedule an estate planning consultation, please call Siedentopf Law at (404) 736-6066 or visit our website.
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