How Is a Durable Power of Attorney Defined?
Typically, a power of attorney ceases to be effective or becomes void once the individual granting the POA (the principal) becomes incapacitated. However, for a POA to be considered durable, it must stay in effect after the principal can no longer act on their own behalf.
A Lincolnton durable power of attorney, under North Carolina statutes, is defined as when an individual (principal) chooses another individual (agent) in writing, and one of the following statements is contained in the document:
- The power of attorney will be affected by the principal’s subsequent mental incompetence or incapacity;
- The power of attorney will become effective after the principal becomes mentally incompetent or incapacitated;
- Or similar words that demonstrate the intention of the principal that the authority that is granted is exercisable regardless of the principal’s subsequent mental incompetence or incapacity
This essentially means that a durable power of attorney in Lincolnton will remain in effect if you become mentally incompetent or incapacitated or will only be effective in the event of your mental incompetence or incapacity. The latter is known as a “springing” DPOA.
What Can the Agent Do?
While the agent’s powers are broad, they only have as much power as you designate. According to North Carolina law, an agent may be granted authority to make important decisions on finances, including buying, selling, or disposing of specific assets. You may grant your agent authority over the following areas:
- Stocks and bonds
- Real property
- Commodities and options
- Tangible personal property
- Insurance or annuities
- Operation of a business or entity
- Banks and other financial institutions
- Family and personal maintenance
- Trusts, estates, and other beneficial interests
- Retirement plans
- Claims and litigation
- Benefits from governmental programs or military or civil service
If you fail to grant authority to an agent in your durable power of attorney, the court will step up and appoint a guardian the authority to manage your financial assets, similar to when individuals don’t appoint an executor for their Will. Court-appointed guardians might not know enough about you to act as you would in certain situations.
Essentially, your Lincolnton durable power of attorney gives you control over who you designate to manage your financial affairs, what situations you are granting them this power, and the length of time they have this power.
What’s the Fiduciary Duty of the Agent?
Given their potential power, an agent has a fiduciary obligation to act in the principal’s best interest and do what the principal would reasonably expect from them. Along with their fiduciary responsibility, an agent must carry out other duties as well, such as:
- Identifying themselves as the agent of the principal whenever they’re acting on behalf of the principal
- Maintaining a record of all the principal’s financial transactions on their behalf
- Cooperating with other individuals who have authority over the healthcare decisions of the principal
If the agent were to extend their power beyond what they’ve been granted or if they were to breach their fiduciary duty, they may be held responsible for their actions by restoring the affected property’s value or the affected profit that was made from their breach of duty.
Should You Hire a Lincolnton Durable Power of Attorney Lawyer?
If you’re unfamiliar with it, the legal document designating a financial or health care POA can be confusing and complicated. If you have questions about the types of authority you will be granting or about designating a POA overall, it’s a good idea to consult with a reputable durable power of attorney lawyer. Your Lincolnton durable power of attorney lawyer can help you:
- If you require more than one power of attorney agent
- Choose the powers of your POA agent(s) and what areas of your life they can manage
- Draft POA documents that are legally-binding
- Give you guidance on your POA prospects
- Understand your duties under a power of attorney agreement, if you were to name another person as your agent
- Determine when the power of attorney should take effect
An experienced durable power of attorney lawyer in Lincolnton can work with you. They’ll take into account all circumstances and situations where having a DPOA benefits you. A reputable legal team can help you craft a POA that is inclusive enough to cover most circumstances and situations during your disability.
Trust an Experienced Lincolnton Durable Power of Attorney Lawyer at King Law to Advocate for You
A Lincolnton DPOA lawyer from King Law is ready to assist you and your loved ones today. We will provide you with the professional and compassionate care you deserve. Assigning a durable power of attorney can be both daunting and confusing. Let our legal team help you with that.
Call us today at (888) 748-5464 or (888) 748-KING to schedule a consultation and case evaluation. You can also fill out our contact form.