DIY Estate Planning Mistake #3: Thinking Georgia’s Statutory Power of Attorney Form is Enough

Does the Georgia statutory Power of Attorney form give your agents ALL the powers they will need to manage your affairs if you become incapacitated? This article, the third in our series about DIY estate planning mistakes, answers this common question.

The Georgia Legislature created a statutory Power of Attorney form that banks within the state are required by law to accept. Will this form give your agents the powers they need to manage your affairs when you are incapacitated? If you answered “yes,” you may want to think again.

While it’s true that all the banks in Georgia must accept the statutory form, the powers granted by this form are quite narrow. Missing are many of the powers your agents may need to make financial moves on your behalf in the event you become incapacitated and need to access public benefits like Medicaid to pay for long-term care. For example, the statutory form limits the amount of a gift that your agent can make to the gift tax exclusion amount. In 2024, the gift tax exclusion amount is $18,000 per donee per year. (Read more on the subject here.) This limited power can create a big problem if you need Medicaid benefits. We see people in this kind of hot water every day. 

When our firm helps clients with Medicaid planning, one of our strategies involves moving assets into an irrevocable trust. This transfer of assets constitutes a gift to the trust. If you only have the statutory form Power of Attorney, then your agent won’t have the power to move any assets worth more than $18,000 into the irrevocable trust. This means your agent won’t have the power to transfer your home and other valuable assets into the trust.  

When your Power of Attorney doesn’t give your agent the power to move assets, the next option is to create a new Power of Attorney with language that gives your agents the authority to make these transfers. This option only works if you still have the capacity to create a new Power of Attorney. If you don’t, you’re sunk.  

These are legal details that the average layperson wouldn’t know. In fact, many general practice attorneys aren’t aware of them either. We see clients every day who come to us from other attorneys who simply downloaded the statutory Power of Attorney form thinking that it would be enough. Chances are very good that the statutory form won’t give your agents the powers they need if they have to transfer assets, even from one spouse to the other, when you are incapacitated. That’s why it’s important to work with an elder law attorney with experience in Medicaid and VA planning. 

If you have questions or need help, Kimbrough Law is here for you. Call us at 706.850.6910 to schedule your confidential consultation.