A power of attorney is a great tool in theory, but a poorly drafted document can create major issue when it comes time to actually use and try to enforce the power. If a bank or other financial institution is not willing to accept your power of attorney, it may be too late to have it revised and updated if the grantor has already become incapacitated.
This creates a bit of a problem. You have relied on your durable general or financial power of attorney to help in these situations but the bank is now refusing to accept your document, and the grantor is now unable to handle his or her own financial matters and lacks the capacity necessary to execute a new document. At this point, and depending on the surrounding circumstances, we may recommend filing for guardianship if the grantor is incompetent and unable to handle his or her financial affairs. Guardianship is an involved and potentially expensive process which may be avoided by drafting a sound power of attorney on the front end. The guardianship process requires a hearing before a Superior Court Clerk who will make the decision whether or not to appoint a Guardian of the Estate to handle the affairs of a person adjudicated incompetent. The Clerk has the authority to appoint a suitable family member as the guardian of the estate, but may choose to appoint an attorney as non-party guardian. Our attorney is experienced and able to help with the guardianship process. For more info, visit Prism's guardianship page.
"General" and "Special/Limited" powers of attorney automatically end at the point that the grantor becomes incapacitated (i.e., unable to comprehend the obligations and effects of entering into a contract, typically by virtue of age, mental illness, or injury). However, if these powers are made "Durable" at the point of creation, they will remain in effect after the point of the grantor's incapacity. Another option to deal with incapacity is a "Springing" power of attorney, which is a power of attorney that becomes effective only at the point of incapacitation (it "springs" into action when the grantor becomes incapacitated).
Note: North Carolina law is specific in the information that may be included in a General Power of Attorney, the manner and methods by which the document may be created, and the steps necessary to execute the document. Failing to follow any of these rules may invalidate an otherwise enforceable Power of Attorney.
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To speak with a Charlotte Wills and Estate lawyer regarding powers of attorney and your estate plan, call 704-412-1442 today.
A general power of attorney, sometimes referred to as a "financial power of attorney," is a powerful tool as part of an estate plan. A Power of Attorney gives a person the authority to act in the interest of another person. The person assigning the authority to another to act on his or her behalf is known as the "grantor" and the person receiving the authority is typically referred to as an "agent" or an "attorney-in-fact." There are several types of powers of attorney. A "General" power of attorney allows the agent to perform a broad range of legal acts on behalf of and without the permission of the grantor, basically allowing the agent to act as the grantor in almost any matter, including but not limited to: opening bank accounts, signing documents, and managing business and financial matters. A "Special" or "Limited" power of attorney also gives the agent the ability to perform tasks on behalf of the grantor, but limits the scope and/or time period of the power.
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To speak to an attorney regarding your estate plan, Wills, Living Wills, Powers of Attorney, or other Estate Planning documents and needs, call 704-412-1442.
To speak with a Charlotte Wills and Estate lawyer regarding powers of attorney and your estate plan, contact Prism Family Law Firm at 704-412-1442 today.