Power of Attorney in North Carolina
A power of attorney is a document that assigns authority to another person to act as your surrogate and make decisions on your behalf. The types of powers of attorney in North Carolina include financial powers of attorney and health care powers of attorney. A durable power of attorney has the authority to make decisions for you during periods of disability or incapacity. A power of attorney can exercise broad powers, so it is important to choose someone you trust to act for you.
An elder care attorney at Brady Cobin Law Group, PLLC can answer your questions about advance care planning and designating powers of attorney to make medical and financial decisions on your behalf if you are unable to do so. Our attorneys also can determine whether your existing powers of attorney documents need to be updated in light of the new law, the N.C. Uniform Power of Attorney Act, which took effect in 2018. We can craft an advance care directive that reflects your values, outlines your end-of-life treatment preferences and authorizes the person or persons you choose to make decisions on your behalf if you cannot do so.
Our law office at Brady Cobin Law Group is focused on elder law and estate planning. For more than three decades, our dedicated Raleigh elder care attorneys have helped individuals and families throughout North Carolina focus on the big picture and work through issues of advance care planning. Our respect for our clients drives the legal guidance we provide to honor our clients’ lives and values. We focus on the quality of the professional relationships we build with clients rather than the quantity of the cases we handle.
What Does Creating a Power of Attorney Do for You?
The purpose of a financial power of attorney is to designate someone to handle your financial affairs if, for whatever reason, you become disabled for a period of time or incapacitated. Having a financial power of attorney drafted and executed is one of the principles documents in estate planning. However, the document must be carefully worded to address your specific needs.
A power of attorney will remain in effect if you become disabled or incapacitated. This is what is known as a durable power of attorney. If you do not wish for the power of attorney to continue if you become incapacitated, the legal document creating the power of attorney must expressly state that it is terminated by the incapacity of the principal.
You may designate one person as your power of attorney or choose two or more people to act as co-agents. You also may designate successor agents to step in if the first person you designated as your power of attorney is unable to fulfill the role due to death, incapacity or resignation. You may designate up to two successor agents.
What Kinds of Powers Should I Give My Agent?
Your agent’s authority is limited to what is spelled out in the power of attorney document. Your agent’s general authority may include making decisions on your behalf regarding real estate, personal property, stocks and bonds, bank and financial accounts, insurance and annuities, retirement plans, Social Security retirement benefits, estates, and trusts and taxes.
If the power of attorney document does not contain a specific power that is needed, your agent cannot act.
Even if you grant someone general authority to act on your behalf, your designated power of attorney may not take certain actions on your behalf unless you have specifically authorized it. These types of actions include changing a beneficiary designation that you have made, creating or changing rights of survivorship, and changing how your property is distributed after your death.
A power of attorney becomes effective when executed unless you specify in the document that the power of attorney will become effective upon some future event or contingent event.
Do You Need a Lawyer to Get a Power of Attorney?
Designating a power of attorney involves important decisions on your part and should only be undertaken after careful consideration. While there are general power of attorney forms online and free durable power of attorney forms as well to create a power of attorney, it’s best to seek trusted legal guidance.
The legal document designating a health care power of attorney can be complicated and confusing if you are unfamiliar with it. If you have questions about designating a power of attorney or the types of authority that you are granting, it is best to seek the guidance of a knowledgeable elder care attorney.
Under the new state law, a power of attorney document does not have to be recorded in the county Register of Deeds office in order for your agent to act on your behalf. However, there is an important exception: A power of attorney document must be recorded in the register of deeds office for your agent to handle real estate transactions on your behalf.
It is helpful to consult with an attorney who has experience with elder care and advance care directives. Our experienced attorneys at Brady Cobin Law Group can work with you to consider the situations and circumstances in which having a power of attorney is to your benefit. Our experienced legal team can craft powers of attorney that are both durable and inclusive enough to cover most situations during disability.
Types of Power of Attorney F.A.Q.
What Are the Drawbacks of Using a Financial Power of Attorney?
There are several issues to consider before designating a power of attorney. Your power of attorney is responsible for acting in your best interest, but there is typically no required reporting of the agent’s actions. If an agent is ever called to account, it is only after the mishandling of finances is discovered.
As a general rule, financial institutions do not like dealing with powers of attorney. North Carolina does have laws in place to protect individuals and institutions from liability for relying on a power of attorney, as well as laws that penalize those who unreasonably refuse to honor a power of attorney. Not all institutions are aware of the requirements. If a financial institution refuses to honor the power of attorney, the recourse in generally through the court system.
The bottom line is that powers of attorney are a necessary part of an estate plan. But the extent to which a power of attorney should be relied upon should be limited to situations in which having a surrogate to make decisions on your behalf is absolutely necessary.
Is a Power of Attorney and a Medical Power of Attorney the Same?
They are not the same.
A financial power of attorney does not authorize your agent to make decisions regarding your medical care. That requires a separate designation of a health care power of attorney. Your financial power of attorney does have a duty to cooperate with the person who has the authority to make health care decision on your behalf.
When Should a Health Care Powers of Attorney be Enacted?
You can designate someone you trust to act as your agent and make medical and health care decisions on your behalf when you are incapacitated and unable to make or communicate your own decisions. You can choose as your health care power of attorney any competent person 18 years or older other than the doctor or health care professional who is overseeing your care.
Under North Carolina law, designating a health care power of attorney gives the person broad powers to make health care decisions in your interest that you would ordinarily make yourself, if able. Therefore, it’s important to discuss your wishes regarding life-support measures, organ donation, mental health treatment and other health care measures with the person you grant your health care power of attorney.
The types of decisions a health care power of attorney has the authority to make include:
- Requesting and reviewing your medical records and information regarding your physical and mental health
- Choosing and discharging your doctors and other health care providers
- Authorizing your admission to and discharge from a hospital, nursing home, hospice or other health care facility.
- Admitting you to a mental health facility.
How Do I Remove the Power of Attorney?
You may revoke your agent’s power of attorney designation in writing or stipulate specific conditions in the power of attorney document under which the authority is terminated.
If you have designated your spouse with your power of attorney and then get divorced, the power of attorney is terminated unless the authorizing document states otherwise.
The guardian of your estate also may terminate the power of attorney.
It is important to understand that if a power of attorney has been recorded in the register of deeds office, you must file an instrument of revocation in that office, along with proof of service on the agent, to terminate the power of attorney.
Seek Legal Assistance with Power of Attorney in Raleigh, NC
The experienced and compassionate elder law attorneys at Brady Cobin Law Group can answer your questions regarding long-term care planning and the role a durable power of attorney may have. With planning, you can have properly designated surrogate decision-makers of your own choosing to act on your behalf if you become incapacitated.
At Brady Cobin Law Group, our attorneys focus on matters related to wills, probate issues, and elder law matters. We focus on the quality of the relationships we build with clients rather than the quantity of the cases we handle. Our founding attorney R. Daniel Brady also is a Certified Public Accountant and brings the financial knowledge of a CPA to tax issues to consider as part of estate planning.