Types

Durable (Statutory) Power of Attorney – Expressly permits an agent to represent the principal in the areas they wish to be represented, in circumstances that include the principal’s incapacitation or death.

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General (Financial) Power of Attorney – This form grants broad and sweeping powers to an individual or entity chosen by the principal to act on their behalf in the financial matters specified within. These powers will exhaust should the principal be deemed by law to be incapacitated.

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Health Care (Medical) Power of Attorney – Due to the sensitivity of considering end-of-life matters at the time of an individual’s hospitalization, it is advisable that individuals take the initiative to file a Medical POA well before it is required.

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Limited (Special) Power of Attorney – A Special POA grants authority for an agent to attend to the particular matters that a principal has set out in this form.

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Minor Child Power of Attorney – Parents or guardians who want to anticipate their planned or circumstantial absence from children can delegate their parental duties and powers to another party in such situations by filing this form.

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Motor Vehicle Power of Attorney (Form MVR-63) – Form MVR-63 is designed to provide individuals in the state of North Carolina the opportunity to establish a POA related to their motor vehicle.

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Real Estate (Property) Power of Attorney – Real estate is another area that a POA may cover. To make the conditions of a real estate POA clear, the principal should draw up this contract.

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Revocation of Power of Attorney – A principal does not need to be bound by a power of attorney if they do not want it to endure. They may revoke it simply by filing a Revocation of Power of Attorney.

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State Tax Filing Power of Attorney (Form GEN-58) – Form GEN-58 is issued by the North Carolina Department of Revenue to taxpayers to file a power of attorney for tax purposes.

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What is a North Carolina Power of Attorney?

A North Carolina Power of Attorney provides the legal means for any individual in North Carolina, so long as they are not in an incapacitated state at the time of the contract’s drafting or signing, to delegate decision making powers to another party for the purpose of allowing that party to administer certain matters on their behalf. It should be kept in mind that Articles 1, 2, 2A, 2B of Chapter 32A have been repealed, effective as of January 1, 2018. Therefore, these Articles are no longer legally-binding. At present, North Carolina has only two (2) primary sets of laws which govern POA arrangements, of which are listed directly below.

• North Carolina Power of Attorney Laws – (Chapter 32C, “North Carolina Uniform Power of Attorney Act”) and (Chapter 32A, Article 3, “Health Care Powers of Attorney”)
• State Definition of Power of Attorney (§ 32C-1-102(9)) – “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.”
• State Definition of Health Care Power of Attorney (Medical POA) (§ 32A-16(3)) – “A written instrument that substantially meets the requirements of this Article, that is signed in the presence of two qualified witnesses, and acknowledged before a notary public, pursuant to which an attorney-in-fact or agent is appointed to act for the Principal in matters relating to the health care of the Principal. The notary who takes the acknowledgment may but is not required to be a paid employee of the attending physician or mental health treatment provider, a paid employee of a health facility in which the Principal is a patient, or a paid employee of a nursing home or any adult care home in which the Principal resides.”
• Signing Requirements

• • General / Durable Power of Attorney (§ 32C-1-105) – It is a requirement that the POA is signed by the Principal (or by another individual directed by the Principal to sign the form on their behalf in their conscious presence) and acknowledged before a Notary Public or another individual legally authorized to take such acknowledgments.
  • Advance Directive / Medical Power of Attorney (§ 32A-16(3)) – The POA must be signed by the Principal in the presence of two (2) qualified witnesses, and acknowledged before a Notary Public. pursuant to which an attorney-in-fact or agent is appointed to act for the Principal in matters relating to the health care of the Principal.

When is it Effective?

In accordance with § 32C-1-105, a General / Durable Power of Attorney is effective when the Principal has signed it and it is acknowledged by a Notary Public or another authorized individual. The Principal may direct another individual to sign their name on their behalf if this signature is completed in the Principal’s conscious presence.

For a Health Care Power of Attorney / Advance Directive / Medical Power of Attorney to be effective, § 32A-16(3) stipulates that it must be signed by the Principal in the presence of two (2) qualified witnesses, and acknowledged before a Notary Public. A qualified witness is defined by § 32A-16(6) as: “a witness in whose presence the Principal has executed the health care power of attorney, who believes the Principal to be of sound mind” and who states that he or she:

(i) is not related within the third degree to the Principal nor to the Principal’s spouse,

(ii) does not know nor have a reasonable expectation that he or she would be entitled to any portion of the estate of the Principal upon the Principal’s death under any existing will or codicil of the Principal or under the Intestate Succession Act as it then provides,

(iii) is not the attending physician or mental health treatment provider of the Principal, nor a licensed health care provider who is a paid employee of the attending physician or mental health treatment provider, nor a paid employee of a health facility in which the Principal is a patient, nor a paid employee of a nursing home or any adult care home in which the Principal resides, and

(iv) does not have a claim against any portion of the estate of the Principal at the time of the Principal’s execution of the health care power of attorney.