Power of attorney in North Carolina follows rules and procedures substantially similar to most jurisdictions. It is governed by the North Carolina Uniform Power of Attorney Act. The state offers two powers of attorney: statutory (otherwise known as “financial”) and medical. To assign statutory power of attorney, you can use a written form provided by the state or you can write your own agency assignment. Unlike many jurisdictions, you do not need to have your power of attorney assignment notarized. Here’s what you need to know.
If you need help creating an estate plan, a financial advisor could walk you through different strategies for your needs.
What Is Statutory Power of Attorney?
Statutory power of attorney is one of the two powers of attorney that you can make. The person who grants power of attorney is known as the “principal” while the person who receives it is known as the “agent.”
With statutory, or “financial,” power of attorney, your agent has the authority to act on your behalf in financial and legal matters. Within the scope of their authority, your agent’s actions have the same legal force as if you had made them. So, for example, your agent can take out a loan in your name or sign a contract on your behalf. In both cases, you would be obligated to meet the terms of the deal, just as if you had signed the paperwork personally.
North Carolina allows agents more potential authority than many other jurisdictions. For example, it is relatively uncommon for states to allow an agent to alter the principal’s will, but in North Carolina you can authorize your agent to make certain changes to your estate plan. So carefully review your grant of authority and do not make assumptions about its limits.
The other format is a medical power of attorney. With a medical assignment, your agent has the authority to make medical decisions on your behalf in the event that you cannot.
5 Common Powers of Attorney in North Carolina
There are several types of powers of attorney assignment. Regardless of category, all powers of attorney ends at the principal’s death. You can revoke power of attorney at any time, for any reason, and can also write an expiration into the assignment. Your principal cannot contradict or alter a revocation, nor can they alter or expand the grant of authority. Here are five important types to consider:
General
A general power of attorney means that you give your agent the broadest scope of authority possible. They can act on your behalf in almost all legal and financial transactions, including accessing your money and property. Your agent will only be limited by statutory restrictions.
This is most often used for estate planning as a precaution against cognitive decline. If you write your own power of attorney assignment it will be considered a general grant unless you specify limits.
Limited
A limited power of attorney means that you give your agent the authority to act only in a certain manner. This can mean a scope of authority. For example, you could give someone power of attorney over your finances, so that they can pay your bills and manage your money. It can also apply to a specific task. As another example, you could give someone power of attorney to manage the sale of your house. This is generally the best assignment for most grants, as it limits the scope of authority to only your needs.
If you specify any limits to your agent’s authority in the grant, it is presumed that they have only the authority you enumerate.
Non-Durable
A non-durable power of attorney automatically ends if you are ever incapacitated. North Carolina defines incapacity as either being unable to receive information or communicate your wishes, or being physically unavailable and unable to return. If a court determines that you are incapacitated or legally incompetent, non-durable power of attorney will immediately end.
Durable
Durable power of attorney does not end if you are incapacitated. While this grant will still end at death, revocation or expiration, it will otherwise continue indefinitely. This category is necessary for estate planning purposes. If you want to trust a third party with power of attorney in case of cognitive decline, it must be a durable assignment.
Unless you specify otherwise, all assignments in North Carolina are considered to be durable.
Springing
Springing power of attorney takes effect when certain conditions are met. For example, you can specify that a power of attorney will take effect only in the event that you are incapacitated. If so, your agent will have no authority until and unless you are declared incapable, at which point the power of attorney will “spring” into life. You still must specify durability.
How Do You Assign Statutory Power of Attorney in North Carolina?
The document you use to assign power of attorney is known as the “grant” or the “assignment.” Executing this document in North Carolina is relatively simple compared with other jurisdictions. The formal requirements are:
- The grant must be in writing
- It must be signed by the principal OR signed in the principal’s presence at their direction
- It must be acknowledged by the principal
- The principal must be legally competent to enter a contract at the time of signing
- It must have the date on which it takes effect
North Carolina does not require you to have a grant notarized. That said, if you do have the document notarized, by law it will be presumed to be valid. If you do not have it notarized, someone may be able to challenge your signature or legal competence to make the assignment.
If you assign the power to manage real property (land or other deeded assets), you must register your power of attorney with the register of deeds in the relevant jurisdictions. If you want the grant to expire, you must specify the conditions under which the grant will end.
This jurisdiction also differs from common practice in regards to durability. All grants are presumed to be durable unless you specify that the assignment will expire upon incapacitation. Unless you want your grant to be durable, it is often a good idea to do this. A non-durable grant ensures that your agent cannot act against your wishes when you are unavailable to contradict them.
You cannot assign power of attorney if you are not legally capable of entering a contract. This generally means that you must be a legal adult (18 or older) and have the mental capacity to understand the nature and quality of your actions.
North Carolina provides a statutory form for making a power of attorney assignment. This form is not required, any written document can assign power of attorney, but it is strongly recommended. The form will walk you through your options and limitations, which will help you tailor this grant to your needs.
Bottom Line
If you want to assign someone power of attorney in North Carolina, make sure that you follow the rules exactly. The last thing you want is for someone to reject or challenge your assignment after the fact.
Estate Planning Tips
- Before you create a power of attorney, do you know the answer to these questions: Can someone take power of attorney without your consent? Can they keep it against your wishes? Read this article to learn more.
- A financial advisor can help you build a comprehensive retirement plan. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
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