The North Carolina durable power of attorney (durable POA) is a legal document that the parties use to transfer their powers from one party to another and that remains valid even in case the principal becomes incapacitated.
The party transferring their powers is called the principal, while the party that represents the principal is called the agent, or the attorney-in-fact.
The principal can use the durable power of attorney in every situation when they are not able to represent themselves or complete a certain action personally. This can happen due to their mental disability, like dementia or Alzheimer’s disease, or simply because they lack the professional knowledge to complete certain actions.
Durable Power of Attorney Laws & Requirements in North Carolina
Laws & Requirements
Signing requirements: The principal must sign the durable power of attorney before the notary public. (§ 32C-1-105)
Statutory form: The North Carolina Statute (§ 32C-3-301) provides the statutory form for the power of attorney.
“Durable” definition: According to § 32C-1-102(2) “With respect to a power of attorney, the incapacity of the principal does not terminate the power of attorney.”
How to Fill out a Durable Power of Attorney in North Carolina
#1. Designate an Agent
Firstly, you should determine the person who will act on your behalf and represent your interests. When choosing an agent, you should look for an adult with the legal capacity to act.
Secondly, you should find a trustworthy person, especially if they will have the authority to make decisions about your finances and health care.
In this section, you can also determine the successor agent. They will act only if the primary agent becomes incapacitated or is otherwise unable to represent you.
#2. Grant Authority
Here, you should determine the scope of authority for your agent by determining the activities they can conduct on your behalf and defining the third parties they can interact with on your behalf.
The North Carolina durable power of attorney form provides three main ways to determine your agent’s scope of authority:
Scope of Authority
General authority. This option enables your agent to conduct all the necessary activities and interact with all third parties on your behalf. You can limit the general authority by providing a list of activities that are not included in the agent’s scope of authority.
Partial authority. Here, you can select the activities you want to include in your agent’s scope of authority from the list of authorities provided in the durable power of attorney form. You can select the relevant authority by signing your initials next to it.
Special authority. With this option, you can define the scope of authority in your own words. This provides the most flexibility since you can include the activities that are not provided in the durable power of attorney form.
#3. Ensure the Form is Durable
In North Carolina, the power of attorney is presumed to be durable unless it is otherwise provided in the document.
#4. Sign the Form
The principal, or another person in their conscious presence and guided by them, should sign the durable power of attorney.
#5. Notarize the Form
In North Carolina, the durable power of attorney must be notarized. The notary public will acknowledge the principal’s signature and the overall authenticity of the document.
#6. Store Your Durable Power of Attorney Form
After finalizing the durable power of attorney, you should keep the original copy in your possession. You should also store the document in a safe place, like your house or a safe deposit box.
You can also give one copy to the agent, so they can prove their capacity to the third parties they are interacting with on your behalf.
How to Revoke a Durable Power of Attorney in North Carolina
You can revoke the North Carolina durable power of attorney by providing a verbal or written revocation, destroying the document with the intent of revocation, or issuing a new power of attorney that will revoke the previous one.
However, the most efficient way to make the revocation is to issue the revocation letter. This letter should include the agent’s name, the date of issuing the power of attorney, and any other detail that will help the parties individualize the document.
To make the revocation effective, you should give one copy to the agent and to every third party they are interacting with on your behalf.