Legal Question in Legal Ethics in North Carolina

Does a durable power of attorney have to be filed to be effective ? If I am not mentally incompetent is it legal for an attorney in fact to act on my behalf when they chose to do something that I am not in agreement with ? If there are 2 witnesses do they both have to be present or can 1 witness and the other sign at a later point ?

Asked on 11/25/12, 8:40 pm

1 Answer from Attorneys

A durable power of attorney does not have to be filed until an agent is ready to use it. Then it should be filed with the register of deeds. I would have to see the power of attorney to see how it is drafted. If drafted properly, then it does not need to be filed anywhere else. If it was just the statutory form or if it did not otherwise include a provision then it must also be filed with the clerk of court within 30 days of its use and the agent would have to file accountings on an annual basis with the court.

Are you talking about a financial or health care power of attorney? Financial power of attorneys do not have to be witnessed by anyone. Health care powers have to be witnessed by 2 individuals who are not related or stand to gain from the person. I recommend that everyone sign at the same time in front of each other and the notary. You can do it separately but each signature of each witness will have to be separately notarized then.

If you disagree with what your agent is doing, then you and your agent need to have a chat. The agent is supposed to be acting in the principal's best interests. If the agent is not doing what you want, you can revoke the power of attorney. Read the power of attorney - it should spell out how the power may be revoked.

Basically, if the power of attorney was filed with the register of deeds, then your revocation, which should be notarized, also needs recorded there. If the power of attorney was also filed with the clerk of court, then also file the revocation there.

If you are mentally competent, why do you have a power of attorney? Or why did you not make it a "springing" power that only takes effect upon mental incompetency?

I can draft a revocation and new power of attorney for you for a reasonable fee. It is not necessary for you to travel to my office or I to travel to your area as this can be accomplished by mail, email, fax and phone (unless there would be a real question about your competency). Please contact me at [email protected] if interested.

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Answered on 11/27/12, 9:15 pm

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