Powers of attorney can be matters of convenience or matters of necessity – the principal either doesn’t want to do something or the principal can’t do something.  For the agents under a power of attorney, allowing yourself to be named as an agent may be nothing more than a favor to friend or an expectation as a son or daughter.  When agreeing to be an agent, it may be worth a pause to consider the geographic scope of that responsibility.  Friends and kids move away, but – like a daughter acting as an agent under her father’s power of attorney in Sullivan v. Bunnell – they may find themselves getting hauled into court across the country because they served as an agent under a power of attorney.

Here, in the midst of his divorce, the father moved from Read More

In Georgia, an agent acting under a power of attorney can give himself the principal’s property at the principal’s direction.  The Georgia Supreme Court reaffirmed that maxim in Anderson v. Anderson.

There, less than a week before the principal’s death, the agent used a power of attorney to execute a deed conveying to himself 280 acres of the principal’s property and another 500 acres of the principal’s property to himself and his siblings. The trial court set aside the deeds on the grounds of a breach of fiduciary duty.  The Georgia Supreme Court reversed and remanded because there was some evidence that the agent executed the deeds at the principal’s request.  There can be no breach of fiduciary duty when an agent acts pursuant to the principal’s express direction or with

Georgia makes it easy to amend a trust if the settlor expressly reserves such a power: it needs to be in writing and signed by the settlor.  In Strange v. Towns, the Georgia Court of Appeals showed us how leniently courts should interpret that power to amend.

Pauline Strange created an inter vivos trust naming herself as the initial trustee and three people, including her son Tony, as successor trustees.  Years later, Pauline executed a “General Durable Financial Power of Attorney,” and in the power of attorney Pauline stated that she wanted Tony to be the “executor” of her estate and the trust.  Pauline and Tony both signed the power of attorney.

This was good enough to amend Pauline’s trust because she reserved the right to amend in

When a person names a friend or relative as a fiduciary in one instrument, it should come as no surprise if that person also names the same friend or relative as a fiduciary in another instrument.  Thus, the same person may be named executor, trustee, and attorney-in-fact.

Since we know that an executor is expected to marshal estate assets, we know that an executor may be called upon to investigate pre-death transactions to determine whether the assets that were the subject of those transactions should really be part of the estate.  Sometimes that requires a lawsuit to recover those assets.  So, what happens when one person, acting under a power of attorney, engages in a transaction that estate beneficiaries claim was improper?  If the attorney-in-fact is also the executor, how can that person be called upon to investigate him or herself?  In In re: the

It’s a pretty common mistake for litigators in Georgia unfamiliar with fiduciary litigation – naming a trust as a party to a lawsuit.  Apparently, as we recently saw in Ford v. Reddick, it’s a mistake made in real estate transactions, too.

It’s hard to blame them because, on the surface, the Georgia Code’s many references to trusts may unwittingly suggest to some that a trust is itself a legal entity.  But, under Georgia law, it’s not.

So what tripped up the real estate transaction in Ford?

Litigation over powers of attorney is pretty popular right now.  And a lot of the dispute is whether an attorney-in-fact is authorized to perform some act under the authority granted in the power of attorney.

In Harris v. Peterson, the Georgia Court of Appeals is one of the latest courts to weigh in on these issues.  It tackled the question of whether an attorney-in-fact can perform an act that the principal refused to perform.

The background facts can be distilled to this:

Let’s just jump right into this one: in 2010, a Houston County, Georgia jury declared that a Will and a Revocable Trust executed by Thomas Hines, Sr., in 2002 were invalid, as they were the product of undue influence.

In Davison v. Hines, the Georgia Supreme Court affirmed the jury verdict.  The reason we just jumped right into the discussion of this case is because undue influence cases are fact-intensive.  So, let’s look at the facts that supported the verdict.