Durable Power of Attorney
A power of attorney legally authorizes a purpose to act as your agent. The types and purposes for using a power of attorney greatly vary. You, as the principal, may wish to grant your agent broad or limited authority. You may want to limit the authority to one specific situation. A power of attorney is a great thing to use if you cannot make it to something like a real estate closing and wish for someone to act on your behalf to close the deal. You can also use a power of attorney to grant your agent the authority to make health care situations on your behalf should you become incapacitated. This same agent or a different agent of your choosing can also be empowered to manage your financial affairs during your incapacitation. Whatever the reason, a power of attorney is a valuable legal tool that can prove invaluable in a variety of circumstances.
What Is a Durable Power of Attorney?
As discussed above, there is a limited power of attorney and broad power of attorney. There is a health care power of attorney and a financial power of attorney. In addition to these specific assignments as to your power of attorney, you can also elect to make your power of attorney “durable.” A durable power of attorney remains effective even in the event that the principal becomes incapacitated. Usually, a power of attorney is deemed void as soon as the principal becomes unable to act on his own or her own behalf. A durable power of attorney designation changes that.
Pursuant to North Carolina law, there must be specific language used when establishing a durable power of attorney. The document creating the power of attorney must contain language that clearly shows the principal intends the power of attorney authority to remain intact despite any future incident of the principal becoming incapacitated or mentally incompetent. In addition to this specific language, the durable power of attorney must be signed and acknowledged by the principal with a notary public present. The principal must be at least 18 years of age and mentally competent when signing the power of attorney. Additionally, the agent must be at least 18 years of age and have the mental capacity to understand the responsibility he or she is agreeing to.
North Carolina law also requires the durable power of attorney to be registered at your local county office of the register of deeds in order to be effective in the event of your incapacitation. Within 30 days of registration, the agent must file a copy with the clerk of superior court in the country of registration. There are certain instances where the law may allow these two requirements to be waived.
A durable power of attorney survives incapacitation of the principal. This means it is a good idea for everyone to have a power of attorney in place. Incapacitation is rarely planned for, but it does happen. If it should happen, having a power of attorney in place will mean that you have a trusted individual making important decisions on your behalf. The relationship of principal and agent is fiduciary in nature. This means that the agent must always act in good faith and in the best interest of the principal.
Creating Estate Plans to Protect You and Your Loved Ones
A durable power of attorney is just one of a number valuable
legal estate planning tools that you can put in place now to help you and your family in the future. At Monk Law Firm, we protect the best interests of our clients through the development of comprehensive estate plans. For all of your estate planning needs,
contact us today.