Power of attorney, health care directive and guardianship in North Carolina

Financial power of attorney in North Carolina

Law and official form

Law

North Carolina Uniform Power of Attorney Act (Chapter 32C of the General Statutes)

Uniform Power of Attorney Act

Yes (effective January 1, 2018)

Official form

North Carolina Statutory Short Form Power of Attorney (G.S. 32C-3-301)Published by North Carolina General Assembly

You do not have to use it.

A nonexclusive method; you can use a different form. The form ends with a notary acknowledgment. G.S. 32C-3-302 has an optional agent's certification and 32C-3-303 a limited power of attorney for real property.

Law: N.C. Gen. Stat. Chapter 32C (S.L. 2017-153); N.C. Gen. Stat. §§ 32C-3-301 to 32C-3-303

Signing rules

How to sign

Sign the power of attorney and acknowledge it before a notary public or another officer authorized to take acknowledgments. North Carolina law requires the acknowledgment; no witnesses are needed.

Who signs

Signed by you (the principal), or by another person you direct to sign your name in your conscious presence.

Notary

Required

Witnesses

None required

Agent's acknowledgment

No signed acceptance is required. An agent accepts by acting as agent or by other conduct showing acceptance, unless the power of attorney says otherwise.

Law: G.S. 32C-1-113

Electronic signing

The Act modifies the federal E-SIGN Act and a power of attorney can be a 'record'.

Law: G.S. 32C-1-102, 32C-4-402

Law: N.C. Gen. Stat. § 32C-1-105

Durable and springing

Is it durable?

A power of attorney is durable (keeps working if you lose capacity) unless it expressly says it ends when you become incapacitated.

Law: G.S. 32C-1-104

Durable unless it says otherwise?

Yes: it continues if you lose capacity unless it says otherwise.

Starting later (springing)

A power of attorney works as soon as it is signed unless it says it starts on a later date or event. You can name people to decide in writing that the event happened. If it starts on incapacity and no one is named (or they will not decide), two physicians or licensed psychologists who examined you can determine incapacity in writing; if you are missing, detained or outside the U.S., an attorney, judge or government official can. Once effective this way it stays effective even if you later regain capacity, until it ends.

Law: G.S. 32C-1-109

What an agent can and cannot do

Needs express permission

• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Delegate authority under the power of attorney
• Waive your right to be a beneficiary of a joint and survivor annuity, including a retirement plan survivor benefit
• Exercise fiduciary powers you have authority to delegate
• Renounce or disclaim property, including a power of appointment
• Access the content of your electronic communications
• Exercise your powers as settlor of a revocable trust, or consent to modify or end an irrevocable trust (the power of attorney or the trust must expressly allow it)

No power of attorney can

Unless the power of attorney says otherwise, an agent cannot use even express powers to give themselves (or someone they must support) an interest in your property. A financial power of attorney does not give health care authority; health care powers given to a health care agent are superior to similar powers in a general power of attorney.

Law: G.S. 32C-2-201(c); G.S. 32A-22(c)

Law: N.C. Gen. Stat. § 32C-2-201(a)

Agent duties, pay and court review

Agent duties

• Act in line with your reasonable expectations as far as the agent knows them, otherwise in your best interest
• Act in good faith
• Act only within the authority given
• When acting: act loyally for your benefit and avoid conflicts of interest
• Act with care, competence and diligence
• Keep records of all receipts, payments and transactions
• Cooperate with your health care decision-maker
• Try to keep your estate plan in place when that is in your best interest
• Disclose transactions when ordered by a court or asked by you, a person you named, a guardian, or after your death your personal representative

Agent pay

If the power of attorney sets the agent's pay, that controls. If it is silent and you become incapacitated, the agent may receive reasonable compensation as determined by the clerk of superior court; expenses are reimbursed on request to the clerk, unless the power of attorney says otherwise.

Law: G.S. 32C-1-112

Asking a court to review an agent

The clerk of superior court has original jurisdiction to compel an accounting, determine the agent's authority and pay, approve gifts, and decide whether a business must accept the power of attorney. You, the agent, a guardian, your personal representative, your health care decision-maker or any other interested person can file. If you have capacity, the clerk must dismiss the petition at your request.

Law: G.S. 32C-1-116

Law: N.C. Gen. Stat. § 32C-1-114

When it ends and how to revoke it

It ends when

• You die
• You become incapacitated, if the power of attorney is not durable
• You revoke it
• It says it ends (a date or event)
• Its purpose is accomplished
• The agent dies, becomes incapacitated, resigns or is removed, or you revoke the agent's authority in writing, and no other agent is named
• A guardian of your estate or general guardian ends it
• For an agent married to you: a court enters a divorce decree, unless the power of attorney says otherwise

Divorce ends a spouse's authority

Yes · Divorce rules in North Carolina (Divorce Law Map)

How to revoke

If the power of attorney is not recorded with a register of deeds, you can revoke it in either of two ways while you are not incapacitated: sign a written revocation and acknowledge it before a notary, or burn, tear, cancel, obliterate or destroy it (or have someone do so in your presence at your direction) with the intent to revoke it. A revocation of one agent's authority must be in writing. A recorded power of attorney can be revoked only by recording a revocation (see below).

Telling others

Tell the agent and every bank or business that has a copy. An agent or other person who acts in good faith without actual knowledge of the revocation is protected, and the act binds you.

Law: G.S. 32C-1-110(d)

If it was recorded

If the power of attorney was registered with a register of deeds in North Carolina, you must revoke it by registering, in that same office, a revocation you signed and acknowledged while not incapacitated, with proof of service on the agent under Rule 5 of the Rules of Civil Procedure.

Law: G.S. 32C-1-110(g)(1)

Law: N.C. Gen. Stat. § 32C-1-110; N.C. Gen. Stat. § 32C-1-110(b), (g)

Banks, other states and real estate

Banks and other businesses

Within 7 business days after an acknowledged power of attorney is presented, a person must accept it, refuse it for a listed reason, or ask for an agent's certification, translation or lawyer's opinion; then decide within 5 business days after receiving it. It cannot demand a different form if the one presented reasonably appears to authorize the business. Listed reasons for refusal include good-faith doubt, reasonable cause to question it, a past breach of agreement, and a report to adult protective services or police. Wrongful refusal can lead to a court order and liability for attorney's fees. A business is not required to accept a power of attorney that has not been acknowledged.

Law: G.S. 32C-1-119, 32C-1-120

Signed in another state

A power of attorney signed outside North Carolina is valid in North Carolina if its signing followed the law of the state that governs it or the federal military power of attorney rules.

Law: G.S. 32C-1-106(c)

Real estate

Before an agent transfers real property, the power of attorney (or a certified copy) must be registered with the register of deeds in the county where you live or where the property is. Failing to do so does not void the deed but is an infraction.

Law: G.S. 47-28

Health care directive in North Carolina

The document and its form

Document

Health Care Power of Attorney

Official form

Health Care Power of Attorney (statutory form, G.S. 32A-25.1)Published by North Carolina Secretary of StateVersion: Rev. 07-08-2022

You do not have to use it.

Living will

Advance Directive for a Natural Death ('Living Will')

The living will is a separate document.

A living will tells your doctors to withhold or stop life-prolonging measures if you have an incurable condition that will cause death within a short time, are permanently unconscious, or have advanced dementia or similar irreversible loss of thinking ability, as you choose. Two physicians must confirm your condition. It must be signed in front of two qualified witnesses (same rules as for the health care power of attorney) and proved before a notary public or a clerk or assistant clerk of superior court. The Secretary of State's form is Rev. 07-08-2022.

Living will

Law: N.C. Gen. Stat. § 32A-25.1; N.C. Gen. Stat. § 90-321

Signing rules

How to sign

Sign the health care power of attorney in front of two qualified witnesses and acknowledge it before a notary public. Both witnesses and a notary are required.

Who signs

Signed by you (or by another person at your direction in your presence, per the statutory form's witness statement).

Notary

Required

Witnesses

2

Who cannot witness

Each of the two witnesses must believe you are of sound mind and state that they are not related within the third degree to you or your spouse; would not inherit from you under a will or by law; are not your attending physician or mental health treatment provider, a licensed health care provider employed by them, or a paid employee of a health facility where you are a patient or of a nursing home or adult care home where you live; and have no claim against your estate. The notary may be an employee of those providers or facilities.

Nursing facilities and special settings

Paid employees of a nursing home or adult care home where you live cannot be witnesses, but the notary can be one.

Law: N.C. Gen. Stat. § 32A-16(3), (6)

Who can be your agent and what the agent can do

Who cannot be your agent

Any competent person 18 or older who is not providing health care to you for pay.

Law: G.S. 32A-18

When the agent starts

The health care power of attorney takes effect when the physician you designated (or, if none, your attending physician; for mental health treatment, a physician or eligible psychologist) determines in writing that you lack capacity to make or communicate health care decisions, and continues during your incapacity.

Law: G.S. 32A-20(a)

Decisions an agent cannot make

The agent has only the health care powers in the document and no general authority over your property. Agent decisions on mental health treatment must follow any advance instruction for mental health treatment. A health care agent cannot revoke your living will unless the health care power of attorney explicitly allows it.

Law: G.S. 32A-19, 90-321(e)

Revoking and conflicting documents

Revoking your agent

While you can make and communicate health care decisions, you can revoke a health care power of attorney by signing and acknowledging a revocation, by signing and acknowledging a new health care power of attorney, or in any other way you can communicate your intent. The revocation takes effect only when you communicate it to each health care agent named and to your attending physician or eligible psychologist.

Revoking your instructions

You can revoke a living will in writing or in any way you can clearly and consistently communicate your intent, whatever your mental or physical condition.

Telling others

Providers are protected if they act on a revoked document without actual notice of the revocation. To remove a document from the Secretary of State's registry, the revocation must be notarized.

Law: G.S. 130A-466(b)

Divorce ends a spouse's authority

Yes · Divorce rules in North Carolina (Divorce Law Map)

Conflicting documents

A health care power of attorney and living will can be combined into one document if it meets the signing rules of both.

Law: G.S. 32A-26, 90-321(j)

Law: N.C. Gen. Stat. §§ 32A-20(b), (c), 90-321(e)

If you have no directive

Who decides without a directive

If you have no living will and your attending physician (confirmed in writing by another physician) finds you will never regain capacity and you have an incurable condition that will soon cause death or are permanently unconscious, life-prolonging measures may be withheld or stopped with the agreement of the first available person in this order. If none is available, the attending physician may decide.

1. A court-appointed guardian of the person or general guardian (a health care agent keeps the authority granted unless the clerk suspends it)
2. A health care agent
3. Another agent with health care powers you appointed
4. Your spouse
5. A majority of your reasonably available parents and adult children
6. A majority of your reasonably available adult siblings
7. An individual with an established relationship with you who acts in good faith and can reliably convey your wishes

Law: N.C. Gen. Stat. § 90-322

Other states, registry and medical orders

Signed in another state

A health care power of attorney or living will signed in another state is valid in North Carolina if it appears to follow that state's rules or North Carolina's.

Law: G.S. 32A-27, 90-321(l)

Registry

Advance Health Care Directive Registry (North Carolina Secretary of State)

Fee: $10 to file a document; no fee to file a revocation. Documents and revocations filed must be notarized.

Law: G.S. 130A-470

POLST (medical orders)

Medical Order for Scope of Treatment (MOST) and portable DNR order (forms developed by the N.C. Department of Health and Human Services)

Mental health directive

You can make an advance instruction for mental health treatment. It must be signed in front of two qualified witnesses and acknowledged before a notary. It can be combined with a health care power of attorney and can nominate a guardian of the person. The Secretary of State publishes a form: https://www.sosnc.gov/webfiles/documents/forms/advance_healthcare_directives/advance_instruction_for_mental_health.pdf

Law: G.S. 122C-72, 122C-73, 32A-19(a1)

Law: N.C. Gen. Stat. §§ 130A-465 to 130A-470; N.C. Gen. Stat. § 90-21.17

Guardianship and conservatorship in North Carolina

What guardianship or conservatorship is

What it is called

Guardian of the person, guardian of the estate, general guardian, limited guardian, interim guardian

When a court may appoint one

An 'incompetent adult' lacks sufficient capacity to manage their own affairs or to make or communicate important decisions about their person, family or property, because of mental illness, intellectual disability, epilepsy, cerebral palsy, autism, inebriety, senility, disease, injury or a similar cause. A person is not incompetent if a less restrictive alternative lets them manage. Incompetence must be proved by clear, cogent and convincing evidence.

Law: G.S. 35A-1101(7), 35A-1112(d)

Kinds

• Guardian of the person
• Guardian of the estate
• General guardian (person and estate)
• Limited guardianship (the ward keeps some rights)
• Interim guardian (up to 45 days, extendable 45 more)

Law: N.C. Gen. Stat. §§ 35A-1101, 35A-1105, 35A-1112, 35A-1114, 35A-1214

Who can ask, which court and your own choice

Who may ask

Any person, including a relative, friend, health care provider or a state or local human services agency, by a verified petition filed with the clerk.

Law: G.S. 35A-1105

Court

Clerk of superior court (special proceedings), in the county where the adult lives, is domiciled or is an inpatient in a treatment facility. A jury can be requested on competence.

Choosing your own

You can nominate a guardian in a power of attorney or a health care power of attorney (the health care nomination controls for guardian of the person). The clerk follows your most recent nomination except for good cause or disqualification, and gives nominees first priority.

Law: G.S. 32C-1-108(a), 32A-22(b), 35A-1214

Effect on a power of attorney

If a guardian of your estate or general guardian is appointed, your agent must account to the guardian. The power of attorney continues unless the clerk suspends or ends it, or the guardian ends it (for a registered power of attorney, by registering a revocation). A guardian of the person can ask the court to suspend a health care agent's authority for good cause.

Law: G.S. 32C-1-108(b), 32C-1-110; G.S. 32A-22(a)

Cost, fee waiver and forms

Filing fee

$120 filing fee plus $30 for the sheriff to serve the respondent. The clerk decides who pays.

Source: N.C. Judicial Branch guardianship page

Fee waiver

If the respondent is adjudicated incompetent and is indigent, the clerk can waive court costs.

Source: N.C. Judicial Branch guardianship page

Forms

• AOC-SP-200 Petition for Adjudication of Incompetence and Application for Appointment of Guardian or Limited Guardian (Rev. 10/19)

Steps

Steps

Other options and where to report abuse

Less restrictive options

• Durable power of attorney and health care power of attorney: An adult who understands what they sign names agents for money and health care.
• Advance directive for natural death (living will) and advance directive for mental health treatment: Written instructions about medical and mental health treatment.
• Representative payee: A person or agency manages government benefits for someone who cannot.
• Joint or automatic-payment bank accounts: Accounts set up to help manage money.
• Special needs trust: Holds money for a person with a disability while keeping needs-based benefits.
• Home health care and informal support: Help with daily living, budgeting or medication reminders.
• Supported decision making: A network of trusted people helps the person make their own decisions.

Report abuse or exploitation

Adult Protective Services at the county Department of Social Services (N.C. Department of Health and Human Services)

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Good to know in North Carolina

• A North Carolina financial power of attorney must be notarized (acknowledged) to be valid.

  Law: G.S. 32C-1-105

• Health care powers of attorney and living wills need two qualified witnesses and a notary; relatives within the third degree and potential heirs cannot witness.

  Law: G.S. 32A-16, 90-321

• A power of attorney registered with a register of deeds can be revoked only by registering a notarized revocation there and serving the agent.

  Law: G.S. 32C-1-110(g)

• The clerk of superior court, not a judge, decides guardianship cases and most power-of-attorney disputes.

  Law: G.S. 32C-1-116, 35A-1112

Questions about powers of attorney in North Carolina