Under Georgia law, a gift can be made for a specific purpose without the necessity of a trust. OCGA § 44-5-87. However, if it appears that the expressed purpose of the gift cannot be accomplished, then the law imposes a trust over it, in favor of the grantor. Id. 

A case announced yesterday by the Court of Appeals addresses this question about the above law: How do we know when it's clear a gift's purpose can't be accomplished? In Choi v. Immanuel Korean United Methodist Church, the Court of Appeals considered whether a trust should not be imposed over a large donation to a church's building fund, when no building had yet been constructed. 2014 Ga. App. LEXIS 218.

It is a time-honored rule of common law that parties are not usually compensated for emotional loss, and the rule is only overcome by statute, as in cases of severe emotional distress. Likewise, our land title law has so evolved to favor marketable, fee simple title, not family or emotional ties to land. 

When it passed the new Uniform Partition of Heirs Property Act, effective June, 2013, the Georgia legislature bucked the common law and enshrined certain "subjective factors" for judges to consider when determining how to partition "heirs property" land. 

I will not address the motivation for the new law. It is done better here in the Georgia Bar Journal and here in a College of William and Mary law review article. Suffice it to say, there are millions of acres in the South that are fractionally owned in such a way that the costs of consolidating the title are prohibitive for their owners. Ethnic minority owners of land are particularly affected because of historical economic hardship. 

The new partition statute, however, may go too far in its attempts to correct these ills. In attempting to honor the importance and sentiment tied to land ownership, the law requires judges in partition actions to consider, among other factors, "whether the land has ancestral or sentimental value to heirs; whether a co-tenant would be harmed if not allowed to continue to use the property in the same manner following the conclusion of the action; . . . and other factors relevant to the court." 

Adding such factors will make it difficult for attorneys and land owners or investors to know how a partition will turn out and is likely to have a chilling effect on important legal work to consolidate land title.

Economically, land is a capital resource, and society gains when it is put to its highest and most valuable use. Placing sentimental, subjective considerations into our land partition law may have the perverse effect of raising the costs to consolidation and efficient use of land and, thus, stunt economic growth in the region. 

 . . . or is there?

Often, a child or close friend of an elderly person will be granted a power of attorney to help the elder handle her financial affairs. Such power of attorney is usually quite broad, granting the trusted agent the ability to, among other things, sell property, open and close bank accounts, and the like.

Far too common is the case where the trusted person then uses the power of attorney for his own financial gain. Family of the exploited elderly person find out only later (often after her death) about the misdeeds. 

Given that the wrongdoer was granted a full power of attorney to do anything they thought proper with the grantor's financial affairs, isn't it impossible to sue the agent for misappropriating money or property, for re-titling assets in the agent's name?

No. In Georgia, as in most other states, an "agent . . . cannot have any interest or do any act adverse to the interest of his principal . . ." Furthermore, "[t]he agent shall not make a personal profit from his principal's property; for all such he is bound to account." First National Bank of Paulding County v. Cooper, 252 Ga. 215, 215 (1984). 

If a loved one dies and the family fears he has been exploited through misuse of a power of attorney, what can be done? Foremost, an attorney should be contacted immediately. Placing an injunction on distribution of mis-titled insurance policies and accounts early on can save an estate large sums. A "constructive trust" may likewise be placed over the assets of the wrongdoing agent to ensure the stolen property isn't dissipated before the case comes to trial. 

Often, such matters settle early. Faced with the reality of their misdeeds and the plain wording of Georgia law, many power-of-attorney-abusing agents will simply allow the matter to progress without putting up a fight. Even in absence of a settlement, a court showing that an agent did some act contrary to the interests of his principal is not as difficult as - say - showing that a will signer was incompetent, and litigation is often worthwhile for the estate.
 

Imagine that, instead of wedding billionaire Howard Marshall, Anna Nicole Smith had merely gotten engaged to him. Marshall, being as he was sixty years Smith's elder, then predeceases her, and Smith requests a posthumous wedding. 

Leaving aside the billions the affair would generate for gossip columns, the possibility of posthumous marriage would wreak havoc for estate planners. What would be the inheritance rights of a posthumously marrying spouse? What level of proof is required to show that s/he was actually the fiance(e) of the decedent? What if the decedent had planned to sign a pre-nuptial agreement limiting the new spouse's inheritance rights? What if everybody knows the decedent would have backed out of the engagement prior to the wedding ceremony?

In France, legal scholars have the pleasure of tangling with such questions, as illustrated by the recent application of the fiance of a man who died as a result of "Muslim" fanatic Mohamed Merah's deranged shootings. 

No such lurid details exist in this case as posited in the Anna N. Smith hypothetical above. Rather, the bereaved fiancee, carrying the decedent's child has petitioned for a respectful ceremony in which she can posthumously wed her untimely dead betrothed. 


States local attorney arranging the matter, "it's a really moving ceremony, with an empty chair representing the dead spouse."

And as to the questions of proof and legitimacy of the engagement? In France, apparently at least some of those problems are dealt with by a curious level of constitutional authority given to the executive. No less than the president must sign off on the application to posthumously wed.

HB 683 was signed into law this week by Georgia Governor Nathan Deal. The law allows banks, employers, and other non-lawyers to file answers to summonses of garnishment in any Georgia court, whether or not represented by an attorney. The Georgia legal newspaper of record, the Daily Report, posted a write-up of the law here. 

Essentially, the law cuts against the basic notion that practicing in court without an attorney is engaging in the unauthorized practice of law. The reason is that banks and employers are organizations. In practice, they cannot "represent themselves" because they are not people. Paying an employee to represent the institution is essentially like hiring a lawyer without a bar license.

Attorney opinions are mixed on the question of whether this is a good development. On the one hand, responding to a summons of garnishment is fairly routine, and once a bank officer has done it, the procedure varies little in the second and succeeding iterations. 

On the other hand, the courts simply are the province of attorneys according to Georgia law. Carving out an exception for garnishment responses makes no sense when there is no exception for other, equally routine legal matters. A strictly libertarian answer to this inconsistency would be to allow anyone, for any reason, to represent a company, lawyer or no. And then we could leave it to lawyers to prove their worth to potential corporate clients. 

As this firm practices frequently on behalf of creditors in collections matters, we can say from experience that allowing non-lawyers to practice before courts, at the very least, will increase the rate of error and resultant burden on society in the form of court time and backlogs.