North Carolina Power of Attorney Document – What You Need to Know

2018 Law Changes Make It Critical to Update to a New Power of Attorney. The Consequences are Irreversible.

A Power of Attorney (POA) is the legal document which allows an agent to handle finances and real estate if someone is no longer able to handle their financial affairs. The old law was repealed; it’s gone! The new act was signed into law by Governor Cooper, and it went into effect on January 1, 2018. While some people have asked me about a grandfather clause; it doesn’t work. It doesn’t work because the institutions accepting the POA want the protection that the new law provides.

What Changed?

The new POA has many changes. These changes didn’t happen by accident or because someone was trying to upset everyone in NC. The new law was negotiated over three years by the NC legislature, committees, and the financial industry. Over the last several years, POAs have become increasingly difficult for agents to implement because banks and financial institutions were reluctant to accept them. This reluctance stemmed from increasing liability and exposure resulting from fraud. The changes implemented under the new law: limit fraud, increase the ease of administration, allow quicker removal of agents acting in bad faith, limit the liability of institutions acting in good faith, clarify and expand the definition of incapacity, and provide for an early warning system when POA agents are changed. The goal of the new law is to make the POA safer for incompetent individuals using a POA and safer for the entities honoring the POA.

At the time the new POA law was adopted, there were other changes, unrelated to the new act, which affect people who get sick. DHHS, the Agency which controls Medicaid, now requires special language in the POA, if you want to preserve assets and qualify for benefits. With the help of an Elder Law Attorney, you may protect assets from being lost to end of life care, but only if you have this special language in your POA. Most POAs don’t have this language.

Since we practice in the areas of Estate Planning and Elder Law, we include such language in the new POA. By including all the necessary language in our POAs, the agent of an incompetent person may access assets, preserve assets from being lost to end-of-life care, and take steps to qualify a loved one for Medicaid.

For the last 18 months, I’ve tried my best to get the word out that the 2018 law changes make it critical to update to the New Power of Attorney, but despite my efforts, it’s been too late for numerous families who didn’t heed my advice, and they’ve ended up in Guardianship.

I’m making one last effort to warn those who haven’t updated their POAs that now is the time.

I want to be clear; once someone is incompetent, it’s too late to do this work. Without the new POA, you can’t access accounts, handle property transactions or protect assets from being lost. Protect yourself and your family by contacting us today to get the new NC POA.

Next Steps

If you complete your documents before November 20th, 2019, the cost is $350 per person. This cost includes a phone meeting, preparation of the new POA, an in-person meeting where you will sign the new POA in front of a notary and two witnesses, and the preparation, signing, and filing of the revocation of the old POA. After that time the price will be $450, plus costs.


Cheryl David

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