NEW NORTH CAROLINA POWER OF ATTORNEY STATUTE

January 1, 2018, is the effective date of the North Carolina Uniform Power of Attorney Act. Governor Cooper signed Senate Bill 569, “An Act to Adopt the Uniform Power of Attorney Act in this State,” into law as Session Law 2017-153 on July 20, 2017. Session Law 2017-153 has no effect on health care powers of attorney and consents to health care for minors 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 Chapter 32A is repealed by Session Law 2017-153 except for Articles 3 and 4 of Chapter 32A.

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 North Carolina Uniform Power of Attorney Act (the “Act”) and prepare to represent his or her client on any matter related to a power of attorney on or after January 1, 2018, in accordance with the Act. A power of attorney is a common form of surrogate decision making that requires familiarity with agency law and the Act and, therefore, North Carolina attorneys from various practice areas must prepare for the effective date of the Act.

Chapter 32C of the North Carolina General Statutes is the new North Carolina Uniform Power of Attorney Act. There is a new “North Carolina Statutory Short Form Power of Attorney” in Chapter 32C effective on or after January 1, 2018. For any form, it is imperative to understand its terms, or lack thereof, before executing it with a client. North Carolina attorneys should consider revisions to this new form or consider use of a modified form.

North Carolina powers of attorney must be executed in accordance with Chapter 32C on or after January 1, 2018. Powers of attorney executed before January 1, 2018, that are effective under Chapter 32A are still effective on or after January 1, 2018. The statutory short form general power of attorney in G.S. 32A-1 should not be executed on or after January 1, 2018. Chapter 32C does 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 (emphasis added).

The MCB will present live CLE programs on Friday, January 19, 2018, (2018 Basics of Estate Planning, Administration & Litigation) and January 26, 2018, (2018 Advanced Issues in Estate Planning), and both will include a one-hour presentation on the North Carolina Uniform Power of Attorney Act. The January 26 one-hour presentation will also be available as an on-demand CLE at MeckBarCLE.org and available for video replay.

Prepared by Janice L. Davies of Davies Law, PLLC and Stephanie C. Daniel of Smith Moore Leatherwood LLP. Ms. Davies 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. Ms. Daniel is the Chair of the Mecklenburg County Bar Estate Planning and Probate Section.