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Atlanta Estate Planning, Wills & Probate | Siedentopf Law

What does a Durable Power of Attorney allow you to do?

What does a durable power of attorney allow you to do? I’m Sarah Siedentopf. I’m an estate planning and probate attorney in Atlanta, Georgia, and that’s what we’re gonna talk about in this video. What can you do with a durable power of attorney? And one of the first questions is sort of what is durable, what makes a power of attorney durable? And so the thing to understand about powers of attorney is that they can start at one of two times.

Durable Power of Attorney

First of all, they can start as soon as they’re signed. I can sign a power of attorney that says you can do something. We’ll discuss what that something is in a second, and it can start right away. Or I can sign a power of attorney that says you can only do these things after I’m incapacitated. Well, back in the old days, the idea was that the only time you could have an agent, a person acting for you, is if you had the mental capacity to act for yourself. So at the beginning of the power of attorney when I became incapacitated, you could no longer act for me because I don’t have the capacity to act for myself. Durable powers of attorney came along with a law change, and we could make a power of attorney durable so that it lasts through incapacity. And you can continue to act for me when I can’t act for myself, which obviously is a great thing, because most of us envision this power of attorney protecting us when we are incapacitated. So that’s the first thing to know, what makes it durable, and when does it start? But in general, there are a lot of things that a power of attorney can do.

What can a Durable Power of Attorney handle?

So it starts out in Georgia with a general list of things. I can bank for you, deal with real property, run your business, general things that we think of as things that a power of attorney might handle. But there are also what are maybe considered special powers. There are things that the legislature thought of as particularly dangerous, and these have to be okayed one by one. So these are things like create, amend, or revoke a trust. Do I want you to be able to create a trust or amend a trust that I created, changing beneficiaries or revoke it? Is that something I want you to do? I have to think about that and initial whether that’s something I want you to do. Changing beneficiary designations, there could be times that that makes sense. Certainly if I have made beneficiary designations and those people have passed away, but I’m no longer competent to change that, you could be changing those, and it could be in my best interest. You could know that if my kids can’t get it, I want it to go to my grandchildren. On the other hand, you could be changing the beneficiary designation to say something that I don’t want it to say. So this is another one that in rights of survivorship, same thing, different line on the power of attorney. But same thing like changing who inherits. So it could be good. It could be bad. The legislature says, I need you to initial each of those specific things if that is a power you want to give.

What about an Acting Power of Attorney?

Another big power is letting someone else act for you. So I can initial to say that if you are on vacation, you can designate someone else to act as power of attorney in your place. This can make for great flexibility. I generally like people to sign that one, but you don’t have to. There’s also one that says we can let the power of attorney act at times when I’m designated as an agent or someone else. So that’s, again, something that I don’t have to let you do. Has to be specifically initialed. One of the ones that I consider most important though is access to electronic communications. That one has to be specifically initialed. It’s something that you specifically have to allow. But, imagine that someone was trying to handle your finances without having access to email. Everything comes by email. Waiting by the mailbox will get you nothing except maybe a 1099 in, you know, February. So if somebody’s handling your financial affairs, they need to have access to your email. And you can certainly put limits on this. And a good power of attorney is not just checking these boxes, of course. There is a section for special instructions where we can put guidelines and say, you know, only these things in certain circumstances, but not in other circumstances.

What about Gifts?

A big one that we often put guidelines around is gifts. So this is another of the special powers that is only something an agent can do. If I’ve initialed that you can make gifts, but how big of gifts do I want you to make? Do I want you to continue giving, you know, $50 Christmas gifts? Do I want you to make gifts up to the gift tax limit, you know, $15,000? Do I want you to be able to make gifts above that? There could be a time when it could be beneficial to me to have that done. Who do I want you to be able to make gifts to? So I can do I just want you to make gifts to my children? Do I want you to make gifts to yourself? Maybe you are one of my children. You know, all of these things can be spelled out specifically, and we can, you know, make specific changes to how they apply. So those are all the things that, you know, a durable power of attorney can handle.

Also, it is important to know that you can have a specific one-item power of attorney. So maybe we’re both on the titles of the car. All I want you to be able to do is sell the car, sign the title, you know, transfer it at the DMV without me going there. Why should two of us go to the DMV? Or, you know, maybe specifically, you know, we’re selling the house. I want to authorize you to sign for me at the closing, because again, why should two of us have to go to this closing? So we can have specific powers of attorney that only list one item. We say this is the specific thing that the agent is allowed to do. That the agent is allowed to do. And so those are different from the general powers of attorney, but it is entirely possible and legal to do those. So that’s really a discussion of what can you do with a durable power of attorney. And if you’ve enjoyed that, please, you know, like the video and subscribe for more content.