New POA Statute Takes Effect Jan. 1
By Janice L. Davies
All attorneys in North Carolina who prepare, review, construe, accept, or otherwise address any matter related to a power of attorney must obtain knowledge about the new power of attorney statute and prepare to represent their clients on any matter related to a power of attorney. North Carolina attorneys from various practice areas must prepare for the effective date of the new power of attorney statute in North Carolina. A power of attorney is a common form of surrogate decision making that requires familiarity with agency law and the new power of attorney statute.
Chapter 32C of the North Carolina General Statutes is the new North Carolina Uniform Power of Attorney Act effective January 1, 2018. Governor Cooper signed Senate Bill 569 into law as Session Law 2017-153. Session Law 2017-153 has no effect on health care powers of attorney and consents to health care for minors provided for in Articles 3 and 4 of Chapter 32A of the North Carolina General Statutes. Chapter 32A is repealed by Session Law 2017-153 except for Articles 3 and 4. It is important to know, however, that the new power of attorney statute did retain the powers conferred in G.S. 32A-2 for the former statutory short form set out in G.S. 32A-1 for application of the description of those powers to those former statutory short forms executed before January 1, 2018.
Chapter 32C provides the new North Carolina Statutory Short Form Power of Attorney effective on or after January 1, 2018. For any form, it is imperative that its terms, or lack thereof, are understood before executing it with a client. North Carolina attorneys should consider revisions to the new statutory form for their clients or consider the modified form offered with the NCBA CLE materials discussed below. Powers of attorney executed before January 1, 2018, that are effective under the old law in Chapter 32A are still effective on or after January 1, 2018, but North Carolina attorneys must execute powers of attorney under the new law in Chapter 32C on or after January 1, 2018. Finally, the statutory short form general power of attorney in G.S. 32A-1 should not be executed on or after January 1, 2018.
“NCBA CLE Power of Attorney: 2018 North Carolina Uniform Power of Attorney Act” is available by video replay and On Demand. Register now for a video replay as the number of attendees are limited by location. If you are unable to attend a video replay at a location near you, there is a video replay at the NC Bar Center on January 4, 2018. As for the On Demand for this CLE, it is strongly suggested to demand the presentations in the order that presentations are listed on the brochure. To access the brochure and register for a video replay or On Demand offering for this CLE, click here.
To obtain the modified form offered with this CLE, access the On Demand offering titled “Drafting a North Carolina Power of Attorney, 2017” and its materials. This presentation reviews the new statutory short form and discusses possible revisions to the new statutory short form or the use of the modified form. If this presentation is the first accessed On Demand, the listener should determine that he or she should access the other On Demand offerings from this NCBA CLE or attend a video replay of this NCBA CLE to have the necessary knowledge to apply the recommendations given in this presentation.
Ms. Janice L. Davies of Davies Law PLLC is the chair of the subcommittee for the North Carolina Uniform Power of Attorney for the Legislative Committee of the NCBA Estate Planning and Fiduciary Law Section.