Power of Attorney Lawyer in Wilmington, NC

Appointing a trusted individual to handle certain matters on your behalf is an important aspect of your estate planning strategy. When properly drafted, a power of attorney can help alleviate stress by ensuring someone you trust can take care of important matters if you cannot do so yourself. A power of attorney becomes especially useful in the event of your incapacitation or inability to make decisions for yourself, as is commonly seen with aging relatives and victims of catastrophic accidents.

What is a Power of Attorney?

A power of attorney, commonly referred to as a POA, is a legal instrument that allows a trusted individual (your "agent") to make decisions for you (the "principal"). In Wilmington and throughout NC, it is crucial to understand the different types of POAs that can be created. Each type of POA grants your agent different powers and responsibilities.

What Types of Power of Attorney are available in North Carolina?

North Carolina has a variety of Powers of Attorney that each play distinct role:

General Power of Attorney

A general power of attorney is commonly referred to as a durable power of attorney. This type of power of attorney gives the agent broad authority to make financial and legal decisions on the principal's behalf. A general power of attorney can only be validly executed and created if the principal is still mentally acute and legally competent to make decisions; if an individual is no longer competent, guardianship or conservatorship proceedings may be required. When the principal dies, the POA will extinguish.

Durable Power of Attorney

A durable POA allows the agent to make decisions on the principal's behalf even if the principal becomes incapacitated or can no longer make decisions on their behalf. A POA is considered "durable" because it continues to exist in perpetuity, unless some action is specifically taken to revoke it.

Limited and Temporary Power of Attorney

A limited POA, also known as a special or temporary POA, limits the decision-making power of an agent far more than a general POA is capable of. A limited POA explicitly indicates the power of the agent, and limits the power to a single transaction. A limited POA is often utilized in a real estate transaction to facilitate the transaction on the behalf of a party who may be unavailable. After the transaction concludes, the limited POA is no longer in effect.

Health care Power of Attorney

A power of attorney can also be used as a health care directive that establishes powers related to your medical care. Such health care directives become extremely important if you can not make important decisions for yourself due to an unforeseen medical debilitation. With a health care POA in place, your agent can acquiesce to surgeries, limit your hospital stays, control visitation, provide input on your medication options, and decide how your treatment is handled.

Can a Caretaker Obtain a POA on Behalf of a Loved One?

No, caretakers cannot obtain a POA on behalf of a loved one. North Carolina does not allow third parties to make crucial decisions on an individual's behalf without that individual's informed consent. If your loved one's health and mental faculties are deteriorating, it is essential to act quickly and get these critical documents in place before they become incapacitated.

What Are the Requirements for Creating a Power of Attorney?

To create a valid durable power of attorney, the principal must be a legal adult (18 years of age or older) capable of expressing who they want to receive the authority to manage their finances. The principal must also be able to sign or direct someone to sign their name. The document should also be notarized. N.C.G.S. § 32C-1-105.

Any legal adult capable of communicating health care decisions can have a health care power of attorney. N.C.G.S. § 32A-17. In most cases, it is advisable to complete both a durable and health care power of attorney simultaneously to avoid potential guardianship and conservatorship proceedings in the future. Obtaining a guardianship or conservatorship for an individual is much more difficult, time-consuming, and expensive than drafting a POA preemptively.

Can I Protect My Loved One if a POA is Abused?

The North Carolina Department of Justice has a dedicated division focused on preventing the financial exploitation of seniors through the misuse of powers of attorney (POA). Misuse and misappropriation of a principal's assets is a criminal offense, and may subject the agent to jail sentences and fines.

Civil legal remedies are also available under NC law. One such remedy is filing a lawsuit for breach of fiduciary duty. Under the North Carolina Uniform Power of Attorney Act, a POA creates a fiduciary relationship in which the designated agent must act in good faith on behalf of the principal. If the agent violates this statute, it constitutes a breach of fiduciary duty.

Another potential remedy is a claim of conversion. Conversion occurs when an agent uses property inconsistent with the principal's ownership rights. Proving conversion can be challenging since many POAs authorize a wide range of actions by the agent.

Fraud is another possible cause of action. A principal may have a fraud claim if your agent makes false or misleading statements that lead you to part with money or valuable items under false pretenses. These misrepresentations by a trusted agent can significantly impact a principal's financial well-being. If you have concerns that your loved one is suffering abuse from their agent under power of attorney, contact a Wilmington estate planning attorney immediately. Bespoke Estate Law can review the situation with you and determine a clear path forward.

Contact Our Attorneys in Wilmington, NC Today

Having a valid power of attorney is a valuable tool for protecting your best interests if you cannot make decisions on your behalf. Not only will your wishes be adequately considered, but your family will have peace of mind knowing they can make crucial decisions in a medical emergency. It is important to act quickly, especially if your or a loved one's health deteriorates. Contact us today to discuss your options for creating a power of attorney. We are also available if you need a trust formation attorney in Wilmington, help solidifying your will, or require other legal assistance.