A power of attorney is an essential document to any estate plan. If you are taking the step of executing a power of attorney to make sure someone can handle your financial affairs when necessary, ensure that your document will actually serve that purpose. At the Law Office of Kelli Y. Allen, PLLC, we prepare expanded durable powers of attorneys, helps seniors plan for long-term care by protecting assets, and can assist with most of your elder law needs. Having an estate plan not only protects your assets that you worked for, it also helps your family and loved ones know your wishes during important times. Our team has years of experience in making a power of attorney estate plan easier for you.
What are the Different Types of Powers of Attorney?
There are two types of powers of attorney: Durable Financial Power of Attorney and Healthcare Power of Attorney. Everyone age 18 or older should have each document in place.
Financial – Durable Power of Attorney
A financial power of attorney appoints another individual or individuals as your agent. When the power of attorney document is drafted, you determine the amount and areas of authority your agent will have.
When selecting an agent, it is ideal to have multiple options. You can name co-agents for your durable power of attorney to eliminate the need for a new document if your initial agent becomes unavailable. This is especially important if you are no longer competent to sign a new power of attorney.
If you choose to have co-agents, they can be given independent authority to act. This means that any co-agent can carry out any and all actions under the power of attorney on their own. Therefore, whichever agent can most effectively or conveniently handle a decision or transaction on your behalf can do so without any other agent’s signature. If one co-agent becomes unavailable to act, the remaining co-agent(s) continue to serve.
If you choose to have successor agents, agents are listed in order of priority with only one person having authority at any one time. Agent #1, the primary agent, is the only person who can act on your behalf unless and until he or she is unable or unwilling to serve. At that point, the next person listed would assume the authority.
As an elder law firm, we can be sure that your financial durable power of attorney is as expansive as necessary, thereby giving your agent the necessary authority to handle your financial affairs during your incapacity.
Healthcare Power of Attorney
A healthcare power of attorney appoints another individual who is authorized to make medical decisions on your behalf if you are unable to do so. If you are unable to speak for yourself, your healthcare providers will take instructions only from your designated representative. Therefore, it is very important that this person be someone who knows you well, would be in a position to determine what your wishes would probably be, and would take this responsibility very seriously.
This authority only vests if you are unable to communicate with your doctors. As soon as you become able to communicate again, your healthcare agent’s authority is automatically ceded back to you.
Without a healthcare power of attorney, state statute determines who can make these decisions. If you are married, this person is automatically your spouse. However, if another person, such as parents or children, believes a different healthcare decision should be made, this would require court intervention. A healthcare power of attorney avoids that issue.
As with the financial power of attorney, it is advisable to have multiple agents so that it never becomes necessary to execute a new document. Healthcare agents are usually designated as successor agents with only one person having authority at a time.
Contact our Charlotte powers of attorney lawyers at (704) 870-0340 for a consultation.
Who Can Override a Power of Attorney in North Carolina?
The person who granted authority to the agent (known as the principal) holds the power to override a power of attorney at any time, as long as they possess sufficient mental capacity to understand their actions. Additionally, court intervention is another way to override a power of attorney if it can be demonstrated that the agent is acting against the best interests of the principal.
Why Retain an Attorney for Drafting a Power of Attorney?
North Carolina provides a statutory short form power of attorney document that many people use, believing it to be sufficient. However, the statutory form and online “do-it-yourself” forms do not address many important issues, and people are often very surprised to find that their power of attorney is not as expansive as they believed it to be.
Durable Power of Attorney and Agent Power
First, it is important that your power of attorney be a “durable power of attorney.” A power of attorney that does not include the “durability” language is effective only so long as the person executing it remains competent. Since most people execute a power of attorney specifically in case of incapacity, they are quite surprised to hear that their document actually may not serve that purpose. By ensuring that your power of attorney is “durable”, your agent will still have the authority to act on your behalf if you become incapacitated.
Secondly, it is vital that your power of attorney explicitly grants your agent each power that you wish them to have. For example, does your document allow the agent to write checks from your bank account but not open a new account? Does your power of attorney allow your agent to create and fund trusts to protect your assets? Most do not. It is not enough to make a general statement that you give all power allowable under the law. Unless the power is expressly stated, most likely, it is not authorized under your power of attorney.
Can Someone Get Power Of Attorney Without Consent?
A person cannot get power of attorney without consent. In order for someone to be able to legally act on the behalf of another person, the principal (person who creates the power of attorney) must create it while they are of sound mind and name a person as an agent. The principal must also grant this power based on their own free will -- they cannot have been pressured to name you as an agent. If they were coerced into doing so, the power of attorney is not legally valid.
The most common situation for this question involves an adult child who wants to obtain a power of attorney because their parent is becoming mentally incapacitated. Unfortunately, if the parent is already not mentally sound, then it is too late for them to consent. However, there is another way to get similar authority -- request to be appointed as your parent’s conservator or guardian.
North Carolina Law on Powers of Attorney
In North Carolina, for your power of attorney to be effective after you become incapacitated, it must be registered with the Register of Deeds in the county where you or your agent reside.
Additionally, North Carolina requires your agent to provide accounting and inventories to the clerk of court. This means that your agent must submit financial records documenting all transactions made on your behalf and work with the clerk of court in handling your financial affairs if you become incapacitated. This requirement can be waived, but your power of attorney document must explicitly waive that requirement. Otherwise, your agent will be burdened by the statutory accounting requirement.
These are all complicated issues to navigate that even those who have already executed a power of attorney will likely be unaware of when drafting documents. These issues can also be further complicated by state law. That is why it is important to reach out to a Charlotte lawyer for drafting a legally sound, durable power of attorney.
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