Georgia Modifies Provisions Relating to Powers of Attorney, Trusts, and Fiduciary Access to Digital Assets

The state of Georgia has modified provisions under its Power of Attorney Act, Revised Trust Code, and Uniform Fiduciary Access to Digital Assets Act. These provisions are effective as of July 1, 2018.

Power of Attorney Act

Incapacity of a Principal

Georgia’s Uniform Power of Attorney Act, which has been renamed the Georgia Power of Attorney Act, has been modified to clarify provisions relating to the incapacity of a principal. The new subsection states that a finding by a court that a principal is incapacitated shall neither constitute a determination of nor create a presumption regarding the principal’s need for a guardian or conservator.

Execution of a Power of Attorney

The provisions relating to the execution of a power of attorney now require that a power of attorney be attested in the presence of the principal by a competent witness who is not named as an agent in the power of attorney being attested. The requirement that the power of attorney be attested before a notary public has been stricken from this provision.

            Other Modifications

The Georgia Power of Attorney Act also modifies sections relating to termination of a power of attorney, actions of agents, and liability for refusal to accept a power of attorney.

For the full text of House Bill 897, please refer to http://www.legis.ga.gov/Legislation/20172018/177209.pdf.

 

Revised Trust Code

Rule Against Perpetuities

Georgia has modified provisions relating to its Uniform Statutory Rule Against Perpetuities and Trusts in an effort to modernize the laws relating to trusts and to allow for trusts to exist for longer periods of time. The time period allotted for interest to vest, a condition precedent to be satisfied, or a power to be irrevocably exercised before termination under the rule against perpetuities has been extended from ninety (90) years to three-hundred and sixty (360) years.

Transfer of Property in Trust

A new section has been added to the Act relating to the transfer of property in a trust. A transfer of property in a trust requires a transfer of legal title to the trustee. Additionally, if a trust is named as a grantee, then such a transfer is deemed to have been made to the trustee of such trust, rather than the trust itself.

Other Modifications

The Act has also modified sections relating to minor and unborn beneficiaries, modification and termination of trusts, and nonjudicial settlement agreements with respect to trusts.

For the full text of House Bill 121, please refer to http://www.legis.ga.gov/Legislation/20172018/177916.pdf.

 

Uniform Fiduciary Access to Digital Assets Act

Georgia’s Revised Uniform Fiduciary Access to Digital Access Act has been modified to extend a fiduciary’s powers to include managing tangible property and digital assets, subject to the legal duties of care, loyalty, and confidentiality. A definitions section has been added to the Act to clarify relevant terms such as “catalogue of electronic communications” and “content of an electronic communication.”

For the full text of Senate Bill 301, please refer to http://www.legis.ga.gov/Legislation/20172018/177186.pdf.

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Elizabeth Dailey, JD, is a Regulatory Compliance Director with CLA. She is a graduate of the University of New Hampshire and earned her juris doctor at New England Law. She is admitted to the Massachusetts Bar.

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