Questions & Answers

– YOU ASK WE ANSWER –

Have you recently begun to act as Power of Attorney (POA) for a elderly family member or friend?  If so, you probably have many questions about your new role. What are your duties and responsibilities? What are your powers? What are your liabilities?

While many people are simply trying to help out a friend or loved one when they agree to act as a Power of Attorney, they often are not aware of the complicated legal issues and substantial responsibilities involved.  When you begin acting as as Power of Attorney, you then are considered the “Agent” and the person you are acting for is called the “Principal“.  As agent, you have multiple detailed responsibilities that it is imperative you fulfill.

Agent Responsibilities.

1. Agents are required to keep detailed records of their actions under the Power of Attorney pursuant to O.C.G.A. §10-6-30 and sometimes also pursuant to the actual Power of Attorney document itself.  Detailed record keeping is absolutely necessary so that the Agent can answer any questions raised by the Principal or other interested persons, either before or after the Principal dies. These records must include all receipts, documents, disbursements and records of all significant actions taken by the Agent.
2. Agents may be required to provide an accounting to the Principal and or others who have been designated to receive an the information contained in an accounting.
3. When an Agent manages finances for the Principle, the Agent must be certain maintain separate accounts, that way Agent funds and the funds of the Principle are never combined or “commingled” in any way.

You may be asking yourself, what happens if you do not keep accurate records? If you are unable to properly document the purpose of each transaction, then you may be held liable for the monies spent without explanation. Many times, clients we see do not intend any harm by failing to keep detailed records while they are also trying to care for a sick loved one. However, their lack of diligence later becomes a source of financial exposure and financial liability.

The answer is no and the reason is simple. You need proof of your child support payments. The best proof is a check written from your account and made payable to the custodial parent. Typically, the custodial parent will then endorse the check on the back so there will be no question about who cashed the check. Also, you can use the memo line to write-the reason for the payment if it is a medical reimbursement or other non-routine expense.

While sometimes convenient, cash payments are problematic because there is not a fool-proof method of record keeping. While a receipt book with individualized receipted signed by the custodial parent is helpful, most parents typically fail to follow through with keeping the receipts for each payment. In addition, there is only one receipt book and if it is lost, someone may be in trouble.

Although many ex-spouses are on good terms with each other at various times, the post-divorce honeymoon usually does not last forever. Instead, a new romantic partner gets involved or some other event occurs and then the relationship sours. If the custodial parent later alleges non-payment, the parent paying child support will be unable to provide proof of payment and will likely be forced to pay again or face incarceration.

Having litigated numerous child support contempt cases on behalf of the custodial parent and the non-custodial parent, I have found that it is imperative that each parent keep good records for all child support payments and reimbursements. Typically, if the custodial parent alleges non-payment of child support, the burden will be on the parent ordered to pay child support to prove with sufficient evidence that the support payments were actually made. Sometimes the allegations of non-payment do not surface until ten or more years after the original payments were due. Therefore, it is very unlikely you will remember what was paid or still have money order receipts lying around the house. Furthermore, the Court is unlikely to accept the verbal testimony of the parent ordered to pay child support as sufficient evidence to establish appropriate payment.

Receipts are helpful and better than nothing, so please consider buying a receipt book at the local office supply store if you elect to pay by cash or money order.

One of the most common methods of avoiding probate (a judicial process for determining the validity of final documents after death) for financial accounts is to have your financial accounts set with Joint Right of Survivorship or to specify Paid on Death (“POD”) Beneficiaries. It is very common for married couples to own accounts joint with right of survivorship. Even if the accounts are not joint, it may be advisable to establish a POD beneficiary so that the bank account can transfer automatically upon your death to the designated beneficiary. This can sometimes alleviate the necessity of probating an estate or at least make certain the desired beneficiary promptly receives the entire account balance.

As set forth in O.C.G.A. § 7-1-813, Georgia law recognizes Joint Accounts with Right of Survivorship, as well as POD beneficiaries. Typically, monies remaining in such a a joint account after the death of another account holder automatically become the property of the remaining account holders. However, this presumption can be overcome with clear and convincing evidence of a different intention at the time the account was established. For example, if you and your mother have a joint account and your mother dies, unless there is clear and convincing evidence to the contrary, the account belongs to you on you mother’s death.

However, there are sometimes arguments over accounts that are made joint for “convenience” and not with the intention that the joint account holder receive the proceeds. If for example your mother puts your name on a bank account as a joint owner so that it is easier for you to write checks on her behalf to pay her bills, but she does not intend that the account pass to you on her death, that is what is referred to as a convenience account. The account is in joint names only for convenience, not because it was intended to pass to you as the check-writer by right of survivorship on your mother’s death. Unfortunately, after your mother is deceased; it is very hard to determine what her intentions were, especially if you as the surviving joint owner assert that your mother intended the ownership of the account to pass to you as the survivor. As stated above, the statute presumes that the account passes to the surviving joint owner. It is up to the other claimants to prove that your mother had a different intention by clear and convincing evidence. For that reason, it is important to carefully consider who you allow to become a joint account holder.

Often times, the attorneys at Durden & Mills, PC get asked whether or not Georgia law supports grandparent visitation. Historically, Georgia grandparents have had limited legal rights to seek court-ordered visitation with their grandchildren, however, due to a recent amendment to O.C.G.A. § 19-7-3, Georgia grandparents now have a greater change of prevailing in a grandparent visitation case. The new statute provides for increased visitation rights to grandparents when a parent is deceased, incapacitated, incarcerated or otherwise unable to exercise his or her discretion regarding a decision to permit or deny the requested grandparent visitation. Additionally, the new statute even gives rights to the grandparent if the parent’s parental rights to the child have been terminated.

With the assistance of the experienced attorneys at Durden & Mills, PC or another qualified family law attorney, grandparents can either (1) file their own legal action seeking visitation or (2) join (intervene) into a pending custody action. After the court action is pending, the Court can grant grandparent visitation under a Temporary Order typically within 60 days. Under the new law, the grandparent visitation time is mandated to be at least 24 hours per month but can be greater depending on the circumstances. However, the new law does not permit a grandparent to seek visitation when the parents of the child are not separated and the child lives with both of them. The critical factor with grandparent visitation cases under the new law is whether or not the grandparent can prove that the health or welfare of the child would be harmed without grandparent visitation and that it would be in the child’s best interest. The major change under the new law is a presumption of harm if any of the following occurred prior to the court action:

1. The minor child resided with the grandparent for six months or more;
2. The grandparent provided financial support for the basic needs of the child for at least one year;
3. There was an established pastern of regular visitation or child care by the grandparent; or
4. Any other circumstance existing which indicates that emotional or physical harm would be reasonably likely to result if such visitation was not granted.

Typically, the answer is NO! While emails, texts, and Facebook posts are being gathered for evidence in an increasing number of contested divorce and custody proceedings, litigants should be cautious. When it comes to collecting this kind of “electronic evidence”, it is not always easy to determine what is fair game and what crosses the line.  Some spouses who are attempting to build a case for divorce may unknowingly expose themselves to criminal and civil liability in pursuit of the proverbial “smoking gun”.

When it’s a matter of a stranger spying on you, the rules for what constitutes an invasion of privacy are pretty clear, but in cases of “inter-spousal” spying there can be significant gray areas. One of the pivotal issues is whether or not your soon-to-be ex-spouse gave you consent to access the electronic device or on-line account. If you never had permission to access their e-mail account and you just happened to “guess” the right password, you are almost certainly not permitted to gain access to the account. On the other hand, if your spouse receives or sends email from the home computer, knowing that you have the ability to read those e-mails at any time, it is unlikely that they have a reasonable expectation of privacy in those e-mails and it seems that you may be entitled to use those e-mails at trial.

Knowing the rules about accessing your spouse’s e-mail and other electronic accounts is important due to the potential for criminal and civil liability. Federal wiretapping laws, the Georgia Computer Systems Protection Act, and the Georgia Electronic Invasion of Privacy Statute regulate the privacy of electronic communications, including the interception of internet and phone communications. These laws are often used to help define the legal limit of high-tech spying and what is permitted versus what is prohibited.  Although not drafted with divorce cases in mind, these laws are absolutely applicable to anyone who engages in conduct that accesses such information without his or her spouse’s knowledge.

The potential criminal liability applies in a variety of circumstances. Under O.C.G.A. § 16-9-93(b), someone who uses a computer to delete or remove, even temporarily, data from a computer without authorization is guilty of the crime of computer trespass. You can be found guilty of the crime of computer invasion of privacy if you use a computer or computer network with the intention of examining any employment, medical, salary, credit or any other financial or personal data relating to any other person with knowledge that such examination is without authority as set forth in O.C.G.A. § 16-9-93(c). Similarly, O.C.G.A. § 16-11-62(4) makes it illegal for anyone to intentionally and secretly intercept by the use of any device, instrument, or apparatus the content of a message sent by telephone, telegraph, letter, or by any other means of private communication.

In addition to possible criminal sanctions, it is also important to know that evidence obtained in violation of these statutes is not admissible in court as provided by O.C.G.A. § 16-11-67. Therefore, not only do you face the possibility of arrest, but you forfeit the benefit of using the damaging evidence in court. Therefore you should consult with a Georgia attorney before taking any such action.

To protect from snooping during a divorce, you should immediately change all of your electronic passwords for e-mail, social media, and financial accounts. It may also be a good idea to have your computer, laptop, or smart phone checked for possible spyware for other suspicious software that could be capturing information for your soon-to-be ex-spouse.