The Atlanta Lawyer October/November 2019 | Page 19

IN
SECTION
THE PROFESSION
UPDATES
the best ways to protect assets in a new
marriage is through prenuptial (prior to
marriage) or postnuptial agreement (after
the parties are married), which can address
several issues, including property division
in divorce, who (if anyone) gets alimony
and how much, and who is responsible for
what debt. While you can deal with a lot
of issues in a pre or postnuptial agreement,
you can’t deal with certain issues such as
child custody or child support.

In addition to meeting the standards
for a valid contract, the party seeking
enforcement bears the burden of proof to
demonstrate that: (1) the agreement was
not the result of fraud, duress, mistake,
misrepresentation, or nondisclosure of
material facts; (2) the agreement is not
unconscionable; and (3) enforcement of
the agreement would be neither unfair nor
unreasonable. Blige v. Blige, 283 Ga. 65, 67,
656 S.E.2d 822 (2008). A key requirement
is complete financial disclosure, as many
prenuptial agreements have failed due to
inadequate disclosures.
4. Validity of a POA in Georgia
Validly executed financial powers of
attorney can go a long way in staving off
guardianship and/or conservatorship
proceedings. Our state has a new POA
statute as of July 2017 (amended July 2018),
so what is an acceptable POA in Georgia has
recently changed. Often clients have done
their own “home cooking” and produced an
online POA form with ineffective language
or execution. Clients (and sometimes other
lawyers) often misunderstand the cognitive
thresholds required for signing such
paperwork (same as for Wills!), and may
encourage or discourage family members
from updating a POA without the training
required to perform a capacity check—with
very unfortunate consequences.
5. Incapacitation Issues
In the event that an individual becomes
incapacitated without a valid POA,
someone would need to file to become
the “guardian” (for health issues) and/or
“conservator” (for financial issues) for the
ward. Guardians and conservators owe a
duty of undivided loyalty to the ward and
must act in the best interest of the ward.
Navigating what is allowed and not allowed
to be done on behalf of a ward can be very
complicated. Some of the issues to look
out for are whether or not the proposed
guardian or conservator owns any property
jointly with the ward, or if the proposed
person would receive any benefit from any
of the transactions entered into on behalf
of the ward. If there is any question about
whether or not a conflict of interest might
exist, it is best to disclose such issues to
the Court and figure it out early to avoid
potential personal liability!
6. Where there’s a Will, there’s a Way,
Part I
Popular TV financial advisors and
columnists often perpetuate myths and
misunderstandings about the necessity
of Wills and their proper execution.
Clients also report that attorneys relay
misinformation. Examples: married people
don’t need Wills, the law gives all assets
to them automatically; having a Will
helps you “avoid probate” (see more on
this topic below); and provisions can give
executors discretion to decide who gets
what assets. While Legal Zoom-type Wills
are promoted as a low-cost alternative, the
forms themselves have the testator sign on a
separate page than the witnesses, and many
do not have the self-proving affidavit. These
execution flaws require witnesses to be
tracked down before filing, as do attorney-
prepared Wills with these flaws. One of
the most common omissions in online
or attorney-prepared Wills for marrieds
is the lack of an acknowledgement of
Georgia’s Year’s Support law. Finally,
many of these Wills leave estate assets
to minor beneficiaries, prompting
court conservatorship proceedings—a
particularly onerous problem with real
property.
7. Where there’s a Will, there’s a Way, Part
II
Even estate planning with no tax
implications typically requires careful
coordination between the provisions in
the Will, and non-probate assets such as
IRA’s and life insurance policies. Pending
changes in federal law governing IRA
distributions make this particularly critical.
When Wills have been executed without
such coordination, what should be a routine
probate often produces sad and costly
consequences for the family. Examples:
failing to change beneficiary designation
forms and effectively negating the terms of
a Will (because the forms are contracts, and
their terms “trump” Will provisions.) And/
or, because minors cannot own money
(more than $15,000 in Georgia) gifts to
them over this amount or directed to them
through beneficiary designation forms will
prompt a conservatorship proceeding in
the probate court.
8. Trusts to “Avoid Probate”
Clients frequently request/demand the
execution (or amendment) to Revocable
Trusts, because they have been coached to
“avoid Probate.” They believe this approach
saves large sums in taxes, specifically estate
taxes, when their assets are far below
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