At Burgess & Christensen, we have supported families for over four decades, providing compassionate and focused legal guidance. Our team, led by attorney Anjel Burgess, specializes in Social Security Disability and adult guardianship matters.
This overview is designed to help you evaluate whether a power of attorney or guardianship offers the best protection for you or your loved ones.
Power of Attorney in Georgia: Granting Authority
A power of attorney (POA) is a legal document that allows you to appoint someone, known as the agent, to make decisions or act on your behalf. You, as the grantor, retain all your rights even after signing a POA. If the POA is “durable,” it will remain valid even if you lose the ability to decide for yourself.
Having a durable POA involves signing official paperwork and satisfying Georgia’s requirements. It offers a straightforward path to ensuring that, should you become unable to make decisions for yourself, your agent can manage tasks like paying bills, filing paperwork, or even making healthcare choices if you’ve assigned that authority.
Types of Power of Attorney in Georgia
POAs can be separated into general, limited, and healthcare directives. A general POA covers broad decision-making, while a limited POA only grants authority over defined matters. Meanwhile, a healthcare POA, sometimes part of an advance healthcare directive, governs medical choices if you can’t make decisions for yourself. Each variety has distinct guidelines under state law.
For instance, a limited POA might focus solely on selling property or managing a bank account. By contrast, a general POA grants your chosen agent the ability to handle most personal or financial dealings. Healthcare directives, on the other hand, primarily address consent for medical treatments, selecting care providers, or looking into end-of-life preferences.
Creating a Valid Power of Attorney in Georgia
To execute a valid POA, Georgia statutes typically require you to sign the document before necessary witnesses. Some forms also require notarization in order to be valid. Once the POA is properly completed, your agent can present it as proof of authority when dealing with banks or healthcare offices.
Although do-it-yourself templates exist, discussing the details with an attorney is the best way to confirm that your POA complies with state law. Meticulous preparation will help ensure that financial institutions and medical teams adhere to the document if or when it’s needed.
When Power of Attorney Is the Right Choice
Signing a POA can be a good step if you want to plan for the possibility of incapacity while you’re mentally capable. By naming an agent ahead of time, you can often avoid more complicated court procedures later. A POA is usually less disruptive, less time-consuming, and less expensive than legal guardianship proceedings.
When you choose a power of attorney, you also retain the freedom to revoke or change it as long as you are able to make decisions for yourself. You only lose control if you become unwilling or unable to manage your affairs, at which point your agent steps in to help.
Having explored POAs, let’s move next to guardianship and how it differs in Georgia.
Guardianship in Georgia: Court-Appointed Authority
Guardianship is a court-driven process that gives a guardian decision-making power over an incapacitated adult (the ward). This arrangement comes into play when someone can no longer handle personal or financial matters. Unlike a power of attorney, a guardianship removes certain rights from the ward and places them with the guardian.
Whereas a POA is voluntary and signed while the individual is of sound mind, guardianship is ordered by a judge. For that reason, it can feel more intrusive and involves strict court monitoring.
The Guardianship Process in Georgia
The road to guardianship begins with filing a petition at the local probate court, where evidence of incapacity is presented.
Family members or caregivers often provide statements or medical records showing why individuals can’t make decisions independently. A court-appointed evaluator will interview the proposed ward to evaluate whether guardianship is recommended. After reviewing the evidence, the court decides whether guardianship is appropriate.
Once guardianship is approved, the guardian must regularly report to the court on the ward’s condition and finances.
Types of Guardianship in Georgia
Under Georgia law, a guardian of the person can oversee everyday care, living arrangements, and medical decisions for the ward. Meanwhile, a guardian of the property (sometimes called a conservator) controls the ward’s finances. Sometimes, a court might grant one person authority over the ward’s personal decisions and assign someone else to manage finances.
The court can also limit a guardian’s authority if the ward retains some decision-making powers. For example, the court may determine that the ward retains the ability to vote or to marry. This arrangement tries to preserve as many personal rights as possible.
When Guardianship Is Necessary
Guardianship often proves essential when an adult can no longer understand or make informed decisions. A common scenario where guardianship is necessary is when a minor child becomes an adult but does not have the ability to make decisions for themselves or appoint an agent through a power of attorney.
Although it can be time-consuming and more expensive, this path may be the only option..
A deeper look at comparison points can clear up how POAs and guardianships vary in practice.
Key Differences: Power of Attorney vs. Guardianship
POAs are put in place before incapacity occurs, based on personal choice. Guardianship involves court action, often happening after a triggering event. A POA allows you to stay in control of your affairs until you can no longer handle them. In contrast, guardianship permanently assigns your rights to another if you are declared unable to care for yourself.
For cost and complexity, a POA is quicker and cheaper. Guardianship typically entails ongoing court supervision and filings. A POA does not remove any of your rights, though it grants powers to someone else, while guardianship completely shifts decision-making authority from you to the guardian.
When people proactively establish a POA and a healthcare directive, their relatives usually experience less stress when something unfortunate occurs. If no planning has taken place, guardianship may be the fallback for ensuring routine living and medical needs are handled properly.
Below is a brief comparison showing how these routes differ.
| Comparing the Main Features of POA and Guardianship in Georgia | ||
| Aspect | Power of Attorney | Guardianship |
| Method of Establishment | Signed by the grantor while mentally sound | Ordered by a probate court |
| Timing | Proactive choice, done before incapacity | Reactive, initiated after incapacity |
| Court Oversight | None, unless there is a compliance issue | Requires recurring reports to the court |
| Rights of the Individual | Retains personal control unless incapacitated | Ward loses rights in areas subject to guardianship |
| Revocation | Can be altered or revoked if the grantor is competent | Terminates only by court order or if the ward regains capacity |
Either path can safeguard a vulnerable adult in different situations. For many, drafting a POA in advance is the more comfortable option. However, some folks must utilize guardianship if no prior planning is done or if an existing POA proves insufficient.
Alternatives to Guardianship in Georgia
If you want to avoid a full guardianship, consider supported decision-making. This approach involves inviting informal assistance from trusted friends, family, or advisors while you keep final authority over your decisions. Another option is advance directives for healthcare or living wills, which provide detailed instructions about medical interventions.
In Georgia, resources from agencies like the Department of Human Services often guide families in exploring these possibilities. Completing planning documents early can minimize disruptions if you or a loved one faces urgent health challenges later.
Navigating the Legal Landscape: How Burgess & Christensen Can Assist
Our firm has years of experience handling adult guardianship matters for clients across the state. When guardianship becomes unavoidable, we can guide families through each step with clarity and empathy.
Call us at 770-422-8111 or email for further guidance on protecting yourself and your loved ones. You may also visit our website to learn more. We stand ready to address concerns about powers of attorney, guardianships, and everything in between.