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Durable Power of Attorneys

What is a Power of Attorney?

A power of attorney is a document that grants authority to an agent to make decisions for a principal that do not relate to a health care decisions.

What types of Power of Attorney are there?

A power of attorney can be general and specific both durable and effective immediately. 

What is the difference between a Durable Power of Attorney and a Power of Attorney effective immediately. 

A durable power of attorney is a power of attorney that does not terminate the power of attorney when the principal becomes incapacitated. N.C.G.S. section 32C-1-102(2). When a power of attorney is effective immediately, the principal does not need to become incapacitated for the agent to have authority to act on behalf of the principal. 

Does a Power of Attorney need to be durable or effective immediately?

A power of attorney is effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency. N.C.G.S. section 32C-1-109(a).

What types of things does an agent do when granted authority by the Power of Attorney?

An agent of the power of attorney can be limited or broad in granting authority to act on behalf of the principal. Some of the powers and agent can have authority over include but are not limited to:

  • Real property, 
  • Tangible personal property,
  • Stocks and bond,
  • Commodities and options,
  • Banks and other financial information,
  • Operations of entities,
  • Insurance and annuities,
  • Estates, trusts and other beneficial interests,
  • Claims and litigation,
  • Personal and family maintenance,
  • Benefits from governmental programs or civil or military service,
  • Retirement plans, and
  • Taxes.

Is my agent limited with what they can do under my Power of Attorney?

A power of attorney needs to be drafted specifically to how the principal wants their estate to be handled during incapacitation for decisions not relating to health care. Under North Carolina law, there are several actions that agents need specific authority to perform. Under North Carolina General Statute section 32C-2-201, an agent may do the following on behalf of the principal or with the principal property, only, if the power of attorney expressly grants that authority to include but not limited to:

  • Make a gift,
  • Create or change rights of survivorship,
  • Create of change a beneficiary designation,
  • Delegate authority granted under the power of attorney,
  • Waive the principal's right to be a beneficiary of a joint and survivor annuity,
  • Exercise fiduciary powers that the principal has authority to delegate,
  • Renounce or disclaim power that the principal has authority to delegate.
  • Renounce or disclaim property including power of appointments, and
  • Exercise authority over the content of electronic communication.

Do I need a Power of Attorney?

A power of attorney is a key estate planning document along with a will, health care power of attorney, advance directive, trust and letters of instructions. Without an agent appointed through your power of attorney, if you become incapacitated you run the risk of your family having to appoint a guardian to take care of your family and household maintenance such as paying bills, selling property, dealing with government benefits and dealing with every day economical situations. A power of attorney is key to protecting your assets and also provides your estate with economical stability. 

The North Carolina Uniform Power of Attorney Act governs power of attorneys in North Carolina and can be found here

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Served Honorably in the United States Air Force.

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