The Fine Print – Need Help with Decisions? Power of Attorney Explained

power of attorney, Weaver & Budd

“Dear Attorney,

I am getting older and have begun to experience more health problems.  My son wants me to give him access to my accounts and some authority to help with health care decisions.  Should I do this and if so, how do I even begin to do this?  I just want something simple without a lot of legalese.” – This Getting Old is for the Birds, Matthews.


Dear Getting old is For Birds,

The documents you are referring to are called Durable Power of Attorneys. They are simple and will help your loved ones out immensely should something happen making it such that you need help as you age.   The first is a financial Power of Attorney that allows someone else to assist/ manage with your finances.  The second is a Health Care Power of Attorney.  It is used to make decisions for you in end-of-life situations when you no longer have the capacity to make these decisions for yourself.  The person making the POA is called the “Principal”.  The person appointed is the “Agent”.  The Agent is appointed to act on your behalf in accordance with your wishes.

The POAs must be made when you have the capacity to understand what you are doing.  After you have become incapacitated or mentally incompetent, it is too late.  North Carolina law does provide for protecting persons who have become incapacitated or incompetent through appointment of a guardian, but these provisions are far more complicated, expensive, and require the intervention of a court.  Making of valid POAs is much less expensive, much simpler, and does not require court approval.

The health care POA must be in writing and signed in the presence of two witnesses before a notary.  The financial POA must be in writing and signed.    Witnesses are not required.  Although notarization is not required, it is recommended because North Carolina law presumes your signature is valid, if notarized.  You can chose to have such a POA become effective immediately, or you can chose to have the POA become effective when you become incapacitated or mentally incompetent.

Selecting an appropriate agent is also extremely important.  It must be someone you trust, and who is capable of making right decisions and has good judgment.  You can select a different agent for the health care and financial POA, or it can be the same person.

You may choose to act for yourself in making Durable POAs, and North Carolina law provides statutory forms for both Durable POAs, but most people are better off consulting a North Carolina lawyer to ensure the POAs are properly made.  All of us face end of life situations.  Some of us will retain our capacity and competence almost to the end.  Many, however, will lose capacity or competence for days, or weeks, or even years before we pass away.  In these situations, it is important that someone else is able to make these essential decisions for you.

Laura H. Budd, Esq. is a managing partner experienced in estate planning and estate administration at Weaver | Budd, Attorneys at Law.  To schedule a consultation with her, please call (704) 841-0760. The information contained in this article is general in nature and not to be taken as legal advice, nor to establish an attorney-client relationship between the reader and Laura H. Budd or Weaver | Budd, Attorneys at Law.

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