Power of Attorney
Protecting our financial interests is especially important in this day and age of social security and economic uncertainty. I say “our” to point out that this type of knowledge is certainly helpful to us all, myself included! And it’s never too soon or too late to get started. That said, I’d like to take this opportunity to share a few of the estate planning lessons that I took away from a recent seminar.
IT IS ALWAYS A GOOD IDEA TO HAVE A POWER OF ATTORNEY. If you become incapacitated, such as through an accident, sudden illness, unplanned or scheduled absence, a general power of attorney allows you to name someone to act on your behalf with regard to any and all financial, business and contractual matters. This includes the opening and closing of bank accounts, paying of bills, transferring property and contracting attorneys and accountants. This allows YOU, not the court, to decide who is best able to handle your financial matters. If you become unable to handle your financial, business and contractual affairs and haven't appointed an attorney-in-fact, then court intervention will most likely be required before anyone may pay bills, sign a deed to transfer property, sign contracts, or decide other important matters. Moreover, a power of attorney may be required to get access to joint accounts and conduct other business. As a result, failure to appoint a financial power of attorney could ultimately cause excess stress to your family, unnecessary and additional legal fees and delays. Bottom line, it is always a good idea to appoint a power of attorney in the event that you may become unable to handle your financial affairs. Although it is certainly preferable to hire an attorney to draft your power of attorney, Chapter 32A of the North Carolina General Statutes explains the laws in NC with regard to powers of attorney. More specifically, NC Gen. Stat. §32A-1 provides a statutory short form power of attorney.
A HEALTH CARE POWER OF ATTORNEY IS A SEPARATE AND DISTINCT TYPE OF POWER OF ATTORNEY DIFFERENT FROM A GENERAL POWER OF ATTORNEY. The North Carolina General Assembly has acknowledged the fundamental right of an individual to control the decisions relating to his or her medical care, and that this right may be exercised on behalf of the individual by an agent chosen by the individual. As a result, North Carolina has established an additional, nonexclusive method for an individual to exercise his or her right to give, withhold, or withdraw consent to medical treatment, including mental health treatment, when the individual lacks sufficient understanding or capacity to make or communicate health care decisions by and through the designation of a health care power of attorney. Basically, a health care power of attorney allows you to name someone else to make medical decisions for you if you should become unable or unwilling to make these decisions for yourself. You can have both a living will and a health care power of attorney and both can be in the same document. Please note that someone providing health care to you for compensation cannot be named as your health care agent. If you do not name someone as your “health care agent” in a health care power of attorney, then your spouse or next of kin will make all medical decisions for you if you become incapacitated. Chapter 32A of the North Carolina General Statutes explains the laws in NC with regard to health care powers of attorney and NC Gen. Stat. §32-25.1 provides a statutory form health care power of attorney.
–Sarah Reamer currently practices with Hodges & Coxe PC and specializes in general civil litigation, focusing on real estate litigation and foreclosure protection. Please contact her at sreamer@hcpplaw.com or (910) 772-1678.
