When it comes to planning the terms of your future, a power of attorney can be essential. A power of attorney is an estate planning document wherein you appoint someone to represent you and manage your affairs in the event that you cannot—ultimately ensuring decisions related to your property, healthcare, finances, and other assets are entrusted to the right person(s).
Getting a power of attorney in North Carolina can be a sensitive process. However, an experienced power of attorney lawyer can help you fully understand your options. You owe it to yourself to find a knowledgeable, experienced advocate who knows the law and how it applies to your personal estate plan.
Charlotte estate planning lawyer Ryan Stump dedicates himself to drafting responsible and practical estate plans for clients. Call his office at (704) 766-8836 for a consultation about your North Carolina power of attorney forms today.
What Is a Power of Attorney (POA)?
A POA is a legal document authorizing at least one individual, the “Agent,” to act on behalf of another individual, the “Grantor.” An agent may also be called an “Attorney-in-Fact,” whereas a grantor may be called a “Principal.” The grantor appoints their agent(s) and delegates specific responsibilities to them in a power of attorney.
As the grantor/principal in your POA, you can work with our Charlotte estate planning lawyer to appoint an agent you trust. Together, we can specify agent’s powers, limitations of any powers granted, how to exercise said powers, when the document will take effect, and more.
Purpose of a Power of Attorney
As much as you try to plan for the future, you simply cannot foresee some situations. That’s why many people in North Carolina have a power of attorney regardless of their health or age. POAs, along with other estate planning documents, can withstand the unexpected, preserving autonomy for a grantor who may be temporarily or permanently unable to handle their affairs.
For example, if you become incapacitated, relocate to another country, end up incarcerated, or otherwise are unavailable for a period of time, a power of attorney can ensure your affairs are in responsible hands while you are absent. Once a grantor dies, however, the power of attorney they executed will terminate.
Types of Powers of Attorney in NC
Powers you grant to an agent can range from selling a vehicle to paying bills to signing off on removal of life support. Since there are such vastly different reasons to have a power of attorney, there are different types of POA documents. However, two of these documents are staples for a sound estate plan.
The first type of POA is called a Durable Power of Attorney, which appoints an agent to manage a wide range of your financial affairs. The other type of POA necessary to a proper estate plan is called a Healthcare/Medical Power of Attorney, which appoints a Healthcare Agent to make critical medical decisions on your behalf while you are unconscious, incompetent, or otherwise unable to make healthcare decisions for yourself.
Additionally, there are general, limited, specific, and temporary powers of attorney documents, which are useful if you ever need an agent to only represent you during a specific transaction, you want to only grant certain powers, or you want the allow the agent to act for a certain timeframe.
Again, while there are a number of different POA options, two of the most common North Carolina powers of attorney for estate planning purposes are Durable and Healthcare Powers of Attorney, and your estate plan should include both.
Durable Power of Attorney
A Durable Power of Attorney appoints an agent or attorney-in-fact to manage a wide range of the grantor’s affairs, most often involving financial and property transactions. A Durable Power of Attorney is valid whether you are competent or become incapacitated, and remains in existence until it is either revoked or the grantor passes away.
Under a Durable Power of Attorney, you can grant your agent the power can carry out a variety of actions on your behalf, including, but not limited to:
- Manage financial and property transactions
- File tax returns on your behalf
- Manage businesses you own
- File and/or defend legal actions on your behalf
- Provide financial support
- Hire and/or fire professionals such as attorneys, accountants, tax advisors, etc.
- Collect and settle debts
Unlike a Healthcare Power of Attorney, discussed below, a Durable Power of Attorney typically goes into effect immediately upon executing the document, which means it is a standing, not springing, power. A Durable Power of Attorney is also different from general, limited, special and temporary powers of attorney, because a Durable Power of Attorney is not limited to a specific transaction, and it remains in effect even if the grantor becomes incapacitated. Therefore, it is imperative to nominate someone you firmly trust.
It may seem like a Durable Power of Attorney has no limits, but there are certain actions the document cannot be used to perform. For example, the Agent cannot use a Durable Power of Attorney to draft a Will on the Grantor’s behalf. The Agent also does not have the power to transfer his or her duties to another person, nor are they permitted to violate their fiduciary duty to the grantor.
When having a Durable Power of Attorney drafted as part of your estate plan, it is important to consider nominating successor Agents, so you are protected in the event a particular Agent is unwilling or unable to serve in said role.
At Charlotte Estate Planning, we can help you choose the right agent for your durable power of attorney and wholly understand the authority you’re giving them.
Healthcare/Medical Power of Attorney
A Healthcare Power of Attorney is a document that enables an individual, referred to as an agent or healthcare agent, to make medical decisions on your behalf.
While the powers granted under a Healthcare Power of Attorney are typically broad by default, the Grantor does have the power to limit the powers as they wish. For example, a grantor may limit certain powers or decision-making authority that may result in decisions being made that are against the grantor’s religious beliefs.
Based on the terms of your Healthcare Power of Attorney, your agent can make a number of various medical decisions, if you are unable to do so for yourself. Certain powers of a healthcare agent can include:
- Consent to treatments, drug administration, and procedures on your behalf
- Terminate or continue life-prolonging measures
- Choose medical providers and home health care personnel for you
- Allow you to be admitted or discharged from a medical facility
- Request and review your medical records
- Consent to a Do Not Resuscitate (DNR) Order
- Disclose your medical information to other people
Unlike a Durable Power of Attorney, a Healthcare Power of Attorney does not take effect unless the grantor is incapacitated or incompetent and unable to make their own healthcare decisions, which means it is a springing, not standing, power. If drafted correctly, a Healthcare Power of Attorney can work alongside your living will.
In helping you carefully draft your Healthcare Power of Attorney, our firm will take the time to ensure you select the right individual(s) to serve as your agent and understand the powers you are granting. Our experience drafting North Carolina POAs will help us recognize potential consequences and benefits of your health care agent’s powers, limitations to consider, and whether the individual you nominate is the right attorney-in-fact for your needs.
How to Get a North Carolina Power of Attorney
While you can obtain a North Carolina Power of Attorney in a couple of ways, many people find legal representation instrumental. We strongly advise against filling out a power of attorney form you may find online because the form may not be specific to your needs, it may be too ambiguous, and/or it may not comply with current state standards, rendering the document invalid. A lawyer can ensure your form satisfies the requirements, discuss how it fits into a cohesive estate plan, and assist you with the following steps:
Drafting the POA
Our knowledgeable attorneys can draft, review, modify, and answer questions about your POA. We will make sure your power of attorney adheres to North Carolina laws, ensure that you are utilizing the correct power of attorney for your situation, assist you in your decision-making process when selecting your agent, and most importantly, we will make sure you fully understand your power attorney and the powers you are granting to your agent.
Consulting with our power of attorney lawyers can save you precious time and energy, so each step is as smooth as possible. You deserve to feel secure knowing your wishes will be honored.
Sign the POA in Front of a Notary Public
Executing and signing your power of attorney in front of a notary is the last step of the process when having a power of attorney drafted. A notary public is a licensed official who must oversee the signing of your North Carolina POA. Upon signing your power of attorney in front of a notary, and any necessary witnesses, your power of attorney becomes a legally binding document.
The principal or grantor of a power of attorney must personally sign the power of attorney or verbally designate someone present to sign for them. The grantor of a power of attorney must also sign the document while he or she is fully competent. Unfortunately, we often see individuals who wait too long to address their needs for a power of attorney, and their incompetency prevents them from legally executing a power of attorney under the law in North Carolina.
Give a Copy to Your Agent and Other Parties
Keep your original POA document secure, such as locked in a safe or with your lawyer. Make a copy of the form to give to your agent.
As a general rule in North Carolina, you do not need to record or file your power of attorney with the Register of Deeds in order for it to be effective. However, if the power of attorney is being used to transfer land or conduct business on behalf of a person who has become incapacitated, it must be recorded. Your lawyer can help you determine whether additional parties, such as your bank, a register of deeds, or trusted alternate agents need to be provided with a copy of your power of attorney.
North Carolina Powers of Attorney FAQs
Can you revoke a power of attorney in North Carolina?
Yes. Under North Carolina law, you can revoke a power of attorney you granted to an agent verbally or in writing if you are of sound mind.
You can also revoke an existing power of attorney by drafting a new power of attorney and expressly revoking all previously executed powers of attorney. To prevent an agent from abusing his or her powers, you can draft provisions in your power of attorney for removing an agent for failing to satisfy their fiduciary duties, which may alleviate the need to completely revoke your power of attorney down the road.
If a grantor dies, the power of attorney ceases to be effective, and the principal’s will takes precedence.
Can you limit certain health care powers?
While the powers granted under a Healthcare Power of Attorney are often broad by default, for good reason, the grantor can limit them as desired. For example, a grantor may restrict certain powers or decisions when it comes to end of life decisions in order to save family members from having to make such difficult decisions for their loved ones.
What if your attorney-in-fact cannot uphold their duties?
When you draft a POA, you should consider alternative agents in the event the one you choose cannot fulfill their powers or is unable to serve as your agent. If an agent is unwilling or unable to act on your behalf, one of your alternates can step into the role allowing for a seamless transition and ensuring your needs are continually met. If you do not have an alternate and your agent cannot uphold their duties or is unable to serve due to their own incapacity or death, the power of attorney will immediately become ineffective.
What happens if you don’t have a power of attorney?
If you do not have a power of attorney, you and your assets are vulnerable and could easily be taken advantage of. That is why it is crucial to consider these documents in your estate plan and protect your livelihood in advance. A power of attorney document ensures the grantor will have a say in their affairs, even if they become incapacitated. Without a power of attorney in place, you are opening the door for your financial affairs and healthcare decisions to be mishandled by an untrustworthy or unknown outsider.
Contact a North Carolina Power of Attorney Lawyer Today
A North Carolina power of attorney can supplement your estate plan and protect your freedom of choice. Preserve your property, finances, business, health, and more through the vessel of an experienced legal advocate. At Charlotte Estate Planning, attorney Ryan Stump can help draft and review your power of attorney so you can reap the full benefits of the law and have peace of mind, no matter what life throws your way.