In all of the hustle and bustle of news related to the budget, you may have missed a bill filed that impacts law regarding estates and powers of attorney. Below are just some of the changes that would occur if Senate Bill 778 becomes law. You can follow along with the progress of this bill here. [Note, House Bill 1025 includes some of the changes in SB 778 related to powers of attorney as indicated below; HB 1025 does not include the living probate, estate administration, or electronic wills changes described in this post. You can follow along with the progress of HB 1025 here.] Continue Reading
I previously wrote about an agent’s authority to make gifts under the new North Carolina Uniform Power of Attorney Act (NCUPOAA) that went into effect in North Carolina on January 1, 2018. There are two additional points to keep in mind if you are an agent, a third party, or a court examining the agent’s authority granted by the principal to make gifts under a POA. Continue Reading
Mary signs a power of attorney (POA) appointing her son, Frank, as her agent authorized to act on her behalf. The POA is acknowledged by a notary public and states that the agent has the authority to do all acts that the principal could do. The POA is effective immediately and durable by default under the new North Carolina Uniform Power of Attorney Act (NCPOAA) effective January 1, 2018. S.L. 2017-153 (S569) (not applicable to health care POAs or consent to health care for a minor under G.S. Chapter 32A).
Months later, Mary suffers a massive stroke and is no longer able to manage her property or business affairs because she is unable to make or communicate decisions. Frank retrieves the original POA from Mary’s safe and takes it to the bank and attempts to withdraw money from Mary’s checking account to pay some of her bills. The bank refuses to accept the POA and conduct the transaction. A friend of Frank’s notes he had a similar problem with his father’s POA. He had to ultimately seek court-ordered guardianship of his father to be able to conduct the necessary transactions on his father’s behalf because of the bank’s refusal to accept the POA. Is Frank stuck because of the bank’s refusal? Must he obtain guardianship to be able to carry out his duties under the POA on behalf of Mary?
The new North Carolina Uniform Power of Attorney Act (the Act) goes into effect on January 1, 2018. I recently blogged about the judicial relief provisions under the Act here. Next Tuesday, December 12th from noon to 1:15 pm, the School of Government in partnership with the N.C. Administrative Office of the Courts will be offering a free webinar on this new law. The Honorable James Stanford, Clerk of Superior Court, Orange County, Allison Smith, NCAOC assistant legal counsel, Janice Davies, an attorney with Davies Law, PLLC, and I will be presenting. Anyone can register for the webinar here. Note, registration closes tomorrow at noon. Continue Reading
On July 20, 2017, Governor Cooper signed Session Law 2017-153 (S569) known as the North Carolina Uniform Power of Attorney Act (NCPOAA). This new law goes into effect on January 1, 2018 and applies to powers of attorney (POA) in North Carolina. It repeals provisions in GS Chapter 32A that pertain primarily to financial POAs, including the statutory short form POA in Article 1 and the enforcement provisions in Article 5. It creates a new GS Chapter 32C. It does not apply to POAs that grant authority to a person to make health care decisions for another person. Article 3, health care POAs, and Article 4, consent to health care for a minor, under GS Chapter 32A continue to apply and are mostly unaffected by the NCPOAA.
The NCPOAA adopts, in large part, the Uniform Power of Attorney Act published by the Uniform Law Commission (ULC). In both the uniform law and the NCPOAA, there are sections on judicial relief. As noted by the ULC, the purpose of this judicial relief is two-fold: (i) to protect vulnerable or incapacitated persons who grant authority to another under a POA against financial abuse, and (ii) to protect the self-determination rights of the principal. Uniform Power of Attorney Act, Comment, Sec. 116.
The judicial relief provisions as adopted in NC are heavily modified from the uniform law. This is due in part to the fact that the judicial relief provisions under the NCPOAA specifically list proceedings that may be brought under the act and allocate jurisdiction over those proceedings between the clerk, who serves as the ex officio judge of probate in NC, and the superior or district court. The distribution of jurisdiction under the NCPOAA among these judicial officials mirrors estate proceedings under GS 28A-2-4. There are proceedings that are exclusively within the clerk’s jurisdiction, ones that are initiated before the clerk but may be transferred by a party to superior court, and then finally proceedings that are excluded from the clerk’s jurisdiction. The NCPOAA also sets forth the procedures, standing, venue, and appeal rights for these proceedings.