A North Carolina durable power of attorney form allows one person to manage the financial, medical, and personal matters of another during their lifetime. These forms are often used by older people or those needing day-to-day support. The principal may designate the forms as durable, ensuring their validity if they become incapacitated or unable to make decisions.
Laws
North Carolina power of attorney forms are durable by default.
- Relevant Laws: North Carolina General Statutes Chapter 32C (North Carolina Uniform Power of Attorney Act).
- Presumed Durable: Yes, unless the DPOA expressly provides that it is terminated by the incapacity of the principal (North Carolina Gen. Stat. § 32C-1-104).
- Signing: Signature required (North Carolina Gen. Stat. § 32C-1-105).
- Notarization: The principal must sign their DPOA before a notary public or other individual authorized by law to take acknowledgments. (North Carolina Gen. Stat. § 32C-1-105).
- Statutory Form: Yes – (North Carolina Gen. Stat. § 32C-3-301).
Definitions
Durable – “With respect to a power of attorney, the incapacity of the principal does not terminate the power of attorney” (§ 32C-1-102(2)).
Power of Attorney – “A writing or other record that grants authority to an agent to act in the place of the principal, whether or not the term power of attorney is used” (§ 32C-1-102(9)).
Specific Powers and Limitations on Gifts and Transfers
Restrictions on Gifts and Transfers
- Gift-Giving Authority: The DPOA should explicitly state if the agent has the authority to make gifts on behalf of the principal (§ 32C-2-217). While North Carolina laws don’t specify limits for gifting, adhering to federal gift tax exclusion limits is a common practice to avoid tax implications. See section 2503(b) and 2513 of the Internal Revenue Code.
- Gift Splitting Between Spouses: For agents to split gifts with the principal’s spouse, this power must be clearly included in the document. A split gift allows the principal to gift up to twice the amount of the federal tax exclusion.
- Considerations for Gifts: Agents making gifts need to consider the principal’s overall financial plan, potential tax impacts, and the principal’s historical gift-giving patterns.
Limitations on Agent’s Authority
The scope of the agent’s power in a DPOA can vary widely, from paying daily expenses to handling complex financial transactions. The key is clarity in the document regarding what the agent is permitted to do.
Revocation Process
The agent’s authority typically remains in effect until explicitly revoked by the principal, the principal’s death, or if the agent becomes unable or unwilling to act.
Revoking a DPOA is possible at any time, provided the principal is competent to make such a decision. Essential steps include:
- Documenting the decision in writing.
- Notifying the agent and any third parties who might rely on the DPOA.
- Retrieving and destroying all copies of the DPOA.
- If the DPOA has been recorded for transactions such as real estate dealings, the revocation should also be recorded.
- Creating a new DPOA if you wish to give the power to someone else.
Safekeeping of the DPOA
Without a specific registry for DPOAs in North Carolina, the principal should store the document securely and inform a trusted individual of its location. For healthcare-related DPOAs, some counties offer registries.
Additional Resources
North Carolina Legal Assistance for Military Personnel: General information and answers to relevant questions regarding a power of attorney in North Carolina.
