Why You May Need a Durable Power of Attorney

Durable Powers of Attorney

A durable power of attorney is often the best protection against the unexpected or becoming disabled. The person giving the power of attorney is called the principal and the person receiving the power of attorney, the "agent". In short, a durable power of attorney is a legal document in which the principal gives the legal authority to the agent to act on the principal's behalf. In North Carolina, a durable power of attorney needs to be signed by the principal and must be notarized. The power of attorney must state that it is "durable" and that it will continue in effect if the principal becomes incapacitated. A power of attorney terminates at the principal's death but can be revoked at any time prior to the principal's death by the principal giving written notice as required by statute.

A durable power of attorney empowers someone to act as your agent. This person is usually your spouse or one of your children. Your written power of attorney authorizes this person, whom you select, to manage all or part of your business or personal affairs. As your agent, the person you have appointed in your power of attorney must act as your fiduciary. This means your appointed agent is legally obligated to act honestly and in your best interests. It is extremely important that you appoint a person in whose abilities, honesty and integrity you trust, and who you can depend upon no matter what happens. Because your agent will have the power to do whatever he or she chooses with your property, it is important to select someone who can make good decisions for you. There are a great many different things that can be accomplished with a well-drawn power of attorney. You can limit the authority of your agent in the document by giving him or her as many or as few powers to control your property as you judge to be advisable.

The alternative to not having a durable power of attorney in case of incompetency is a guardianship proceeding. This proceeding, which is both time-consuming and expensive, involves the filing of a petition in the courts to have a person or an authorized entity formally appointed as the guardian of an incompetent person's property. Guardianships can also involve gaining control over the individual incompetent person's personal affairs. Generally speaking, formal guardianship proceedings can be eliminated by the execution of a durable power of attorney in which you, as the principal, select you own agent, as opposed to leaving this decision up to the court system.

You should always check with an attorney before you execute a durable power of attorney. The Matthews law firm of Weaver, Bennett & Bland has a number of experienced attorneys who routinely advise clients on the preparation and execution of these important documents.