Legal Question in Wills and Trusts in Georgia

My 20 year old son is currently incarcerated & I need to find out What I can / should do to be able to handle his finances / business while he is there. Thank you for your advice!

Sincerely,

Connie Hayes

(I apologize but, I don't really know what area of law this falls under so, I'm trying Probate)


Asked on 9/30/11, 6:55 am

2 Answers from Attorneys

That is ok - usually probate is for administering the estates of dead people and wills, trusts and estates are for people who do estate planning and often financial POAs are part of any plan. Georgia sticks this under trade and commerce though.

Since your son is incarcerated, he needs to execute a financial power of attorney. There are notaries in prison I assume. Have him fill out this document and get it notarized and send it back to you. This will allow you to handle his financial affairs. This form is available in the Official Code of Georgia (OCGA), but you should be able to copy and paste it. If you are having problems, the OCGA is available online free of charge at http://www.lexisnexis.com/hottopics/gacode/default.asp.

Go to Title 10, Chapter 6 and look for Article 7, Section 142

10-6-142. Statutory form for financial power of attorney

The Georgia Statutory Form for Financial Power of Attorney shall be substantially as follows:

FINANCIAL POWER OF ATTORNEY

County of

State of Georgia

I, , (hereinafter "Principal"), a resident of

County, Georgia, do hereby constitute and appoint

my true and lawful attorney-in-fact (hereinafter "Agent")

for me and give such person the power(s) specified below to act in my name,

place, and stead in any way which I, myself, could do if I were personally

present with respect to the following matters:

(Directions: To give the Agent the powers described in paragraphs 1

through 13, place your initials on the blank line at the end of each

paragraph. If you DO NOT want to give a power to the Agent, strike through

the paragraph or a line within the paragraph and place your initials beside

the stricken paragraph or stricken line. The powers described in any

paragraph not initialed or which has been struck through will not be

conveyed to the Agent. Both the Principal and the Agent must sign their

full names at the end of the last paragraph.)

1. Bank and Credit Union Transactions: To make, receive, sign, endorse,

execute, acknowledge, deliver, and possess checks, drafts, bills of

exchange, letters of credit, notes, stock certificates, withdrawal receipts

and deposit instruments relating to accounts or deposits in, or

certificates of deposit of banks, savings and loans, credit unions, or

other institutions or associations.

2. Payment Transactions: To pay all sums of money, at any time or times,

that may hereafter be owing by me upon any account, bill or exchange,

check, draft, purchase, contract, note, or trade acceptance made, executed,

endorsed, accepted, and delivered by me or for me in my name, by my Agent.

Note: If you initial paragraph 3 or paragraph 4 which follow, a notarized

signature will be required on behalf of the Principal.

3. Real Property Transactions: To lease, sell, mortgage, purchase,

exchange, and acquire, and to agree, bargain, and contract for the lease,

sale, purchase, exchange, and acquisition of, and to accept, take, receive,

and possess any interest in real property whatsoever, on such terms and

conditions, and under such covenants, as my Agent shall deem proper; and to

maintain, repair, tear down, alter, rebuild, improve, manage, insure, move,

rent, lease, sell, convey, subject to liens, mortgages, and security deeds,

and in any way or manner deal with all or any part of any interest in real

property whatsoever, including specifically, but without limitation, real

property lying and being situate in the State of Georgia, under such terms

and conditions, and under such covenants, as my Agent shall deem proper and

may for all deferred payments accept purchase money notes payable to me and

secured by mortgages or deeds to secure debt, and may from time to time

collect and cancel any of said notes, mortgages, security interests, or

deeds to secure debt.

4. Personal Property Transactions: To lease, sell, mortgage, purchase,

exchange, and acquire, and to agree, bargain, and contract for the lease,

sale, purchase, exchange, and acquisition of, and to accept, take, receive,

and possess any personal property whatsoever, tangible or intangible, or

interest thereto, on such terms and conditions, and under such covenants,

as my Agent shall deem proper; and to maintain, repair, improve, manage,

insure, rent, lease, sell, convey, subject to liens or mortgages, or to

take any other security interests in said property which are recognized

under the Uniform Commercial Code as adopted at that time under the laws of

Georgia or any applicable state, or otherwise hypothecate, and in any way

or manner deal with all or any part of any real or personal property

whatsoever, tangible or intangible, or any interest therein, that I own at

the time of execution or may thereafter acquire, under such terms and

conditions, and under such covenants, as my Agent shall deem proper.

5. Stock and Bond Transactions: To purchase, sell, exchange, surrender,

assign, redeem, vote at any meeting, or otherwise transfer any and all

shares of stock, bonds, or other securities in any business, association,

corporation, partnership, or other legal entity, whether private or public,

now or hereafter belonging to me.

6. Safe Deposits: To have free access at any time or times to any

safe-deposit box or vault to which I might have access.

7. Borrowing: To borrow from time to time such sums of money as my Agent

may deem proper and execute promissory notes, security deeds or agreements,

financing statements, or other security instruments in such form as the

lender may request and renew said notes and security instruments from time

to time in whole or in part.

8. Business Operating Transactions: To conduct, engage in, and otherwise

transact the affairs of any and all lawful business ventures of whatever

nature or kind that I may now or hereafter be involved in.

9. Insurance Transactions: To exercise or perform any act, power, duty,

right, or obligation, in regard to any contract of life, accident, health,

disability, liability, or other type of insurance or any combination of

insurance; and to procure new or additional contracts of insurance for me

and to designate the beneficiary of same; provided, however, that my Agent

cannot designate himself or herself as beneficiary of any such insurance

contracts.

10. Disputes and Proceedings: To commence, prosecute, discontinue, or

defend all actions or other legal proceedings touching my property, real or

personal, or any part thereof, or touching any matter in which I or my

property, real or personal, may be in any way concerned. To defend, settle,

adjust, make allowances, compound, submit to arbitration, and compromise

all accounts, reckonings, claims, and demands whatsoever that now are, or

hereafter shall be, pending between me and any person, firm, corporation,

or other legal entity, in such manner and in all respects as my Agent shall

deem proper.

11. Hiring Representatives: To hire accountants, attorneys at law,

consultants, clerks, physicians, nurses, agents, servants, workmen, and

others and to remove them, and to appoint others in their place, and to pay

and allow the persons so employed such salaries, wages, or other

remunerations, as my Agent shall deem proper.

12. Tax, Social Security, and Unemployment: To prepare, to make elections,

to execute and to file all tax, social security, unemployment insurance,

and informational returns required by the laws of the United States, or of

any state or subdivision thereof, or of any foreign government; to prepare,

to execute, and to file all other papers and instruments which the Agent

shall think to be desirable or necessary for safeguarding of me against

excess or illegal taxation or against penalties imposed for claimed

violation of any law or other governmental regulation; and to pay, to

compromise, or to contest or to apply for refunds in connection with any

taxes or assessments for which I am or may be liable.

13. Broad Powers: Without, in any way, limiting the foregoing, generally to

do, execute, and perform any other act, deed, matter, or thing whatsoever

that should be done, executed, or performed, including, but not limited to,

powers conferred by Code Section 53-12-261 of the Official Code of Georgia

Annotated, or that in the opinion of my Agent should be done, executed, or

performed, for my benefit or the benefit of my property, real or personal,

and in my name of every nature and kind whatsoever, as fully and

effectually as I could do if personally present.

14. Effective Date: This document will become effective upon the date of

the Principal's signature unless the Principal indicates that it should

become effective at a later date by completing the following, which is

optional.

The powers conveyed in this document shall not become effective until the

following time or upon the occurrence of the following event or contingency:

Note: The Principal may choose to designate one or more persons to

determine conclusively that the above-specified event or contingency has

occurred. Such person or persons must make a written declaration under

penalty of false swearing that such event or contingency has occurred in

order to make this document effective. Completion of this provision is

optional.

The following person or persons are designated to determine conclusively

that the above-specified event or contingency has occurred:

Signed:

Principal

Agent

It is my desire and intention that this power of attorney shall not be

affected by my subsequent disability, incapacity, or mental incompetence.

However, I understand that it shall be revoked and the Agent's power

canceled in the event a guardian is appointed for my property. As long as

no such guardian is appointed, any and all acts done by the Agent pursuant

to the powers conveyed herein during any period of my disability,

incapacity, or mental incompetence shall have the same force and effect as

if I were not disabled, incapacitated, or mentally incompetent.

I may, at any time, revoke this power of attorney, and it shall be canceled

by my death. Otherwise, unless a guardian is appointed for my property,

this power of attorney shall be deemed to be in full force and effect as to

all persons, institutions, and organizations which shall act in reliance

thereon prior to the receipt of written revocation thereof signed by me and

prior to my death.

I do hereby ratify and confirm all acts whatsoever which my Agent shall do,

or cause to be done, in or about the premises, by virtue of this power of

attorney.

All parties dealing in good faith with my Agent may fully rely upon the

power of and authority of my Agent to act for me on my behalf and in my

name, and may accept and rely on agreements and other instruments entered

into or executed by the agent pursuant to this power of attorney.

This instrument shall not be effective as a grant of powers to my Agent

until my Agent has executed the Acceptance of Appointment appearing at the

end of this instrument. This instrument shall remain effective until

revocation by me or my death, whichever occurs first.

Compensation of Agent. (Directions: Initial the line following your choice.)

1. My Agent shall receive no compensation for services rendered.

2. My Agent shall receive reasonable compensation for services rendered.

3. My Agent shall receive $ for services rendered.

IN WITNESS WHEREOF, I have hereunto set my hand and seal on this day

of , .

Principal

WITNESSES

Signature and Address

Signature and Address

Note: A notarized signature is not required unless you have initialed

paragraph 3 or 4 regarding property transactions.

I, , a Notary Public, do hereby certify that

personally appeared before me this date and

acknowledged the due execution of the foregoing Power of Attorney.

Notary Public

State of Georgia

County of

ACCEPTANCE OF APPOINTMENT

I, (print name), have read the foregoing Power of

Attorney and am the person identified therein as Agent for

(name of grantor of power of attorney), the Principal

named therein. I hereby acknowledge the following:

I owe a duty of loyalty and good faith to the Principal, and must use

the powers granted to me only for the benefit of the Principal.

I must keep the Principal's funds and other assets separate and apart

from my funds and other assets and titled in the name of the Principal.

I must not transfer title to any of the Principal's funds or other

assets into my name alone. My name must not be added to the title of any

funds or other assets of the Principal, unless I am specifically

designated as Agent for the Principal in the title.

I must protect, conserve, and exercise prudence and caution in my

dealings with the Principal's funds and other assets.

I must keep a full and accurate record of my acts, receipts, and

disbursements on behalf of the Principal, and be ready to account to the

Principal for such acts, receipts, and disbursements at all times. I

must provide an annual accounting to the Principal of my acts, receipts,

and disbursements, and must furnish an accounting of such acts,

receipts, and disbursements to the personal representative of the

Principal's estate within 90 days after the date of death of the

Principal.

I have read the Compensation of Agent paragraph in the Power of Attorney

and agree to abide by it.

I acknowledge my authority to act on behalf of the Principal ceases at

the death of the Principal.

I hereby accept the foregoing appointment as Agent for the Principal with

full knowledge of the responsibilities imposed on me, and I will faithfully

carry out my duties to the best of my ability.

Dated: , .

(Signature)

(Address)

Note: A notarized signature is not required unless the Principal initialed

paragraph 3 or paragraph 4 regarding property transactions.

I, , a Notary Public, do hereby certify that

personally appeared before me this date and

acknowledge the due execution of the foregoing Acceptance of Appointment.

Notary Public

Read more
Answered on 9/30/11, 10:03 am
Glen Ashman Ashman Law Office also dba Glen Ashman Attorney

A power of attorney is a must. There is a form in the Georgia code, although you may do better with a custom drafted form, which is very inexpensive. Feel free to call me if we can assist with this or related issues.

Read more
Answered on 9/30/11, 7:11 pm


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