“What is a Power of Attorney? Do I need one?”
A Power of Attorney is one of the most important legal documents a person can have. Without a comprehensive power of attorney, many people are unable to handle their loved ones’ financial matters nor make health care decisions without seeking out some sort of court intervention (e.g., Guardianship or Conservatorship).
Many persons assume that because their assets are titled jointly with their spouse, parent or partner, that they will be able to liquidate these accounts to pay bills, hire attorneys, sell their jointly-titled real estate, etc. Unfortunately, that isn’t that case. Putting a carefully-prepared North Carolina power of attorney into place, however, can ensure that you have the legal flexibility to make decisions and plan on your loved one’s behalf.
What is a Power of Attorney?
A power of attorney is a legal document where one person authorizes another to act on their behalf. There are financial powers of attorney which allow your agent to make decisions regarding your property and health care powers of attorney which allow your agent to make decisions regarding your health care needs.
Your power of attorney can be broad and flexible, allowing the designated individual to make all personal and financial decisions (a General Power of Attorney), or it can be designed to be restricted to certain situations and decisions (a Limited Power of Attorney). In either case, you and your family will have great peace of mind in knowing that red tape will no longer interfere with the ability to take action.
What are Guardianships and Conservatorships?
Guardianship of the Person is a legal relationship whereby the North Carolina Clerk of Court gives a person the power to make personal decisions for another. A loved one initiates the proceedings by filing a court petition in the county where the individual resides. A medical examination by a licensed physician is necessary to establish the condition of the individual. The court will then determine if the individual is legally fit to make decisions regarding his/her care, and may assign a guardian accordingly. Unless limited by the court, the guardian has the same rights, powers and duties over the individual as parents have over their minor children.
Guardianship of the Estate is a legal relationship in which the North Carolina Probate Court gives a person the power to make financial decisions for another. The Court proceedings are very similar to those described above, except that for guardianship of the estate the Court will focus on an individual’s ability to manage their finances. In many cases, the Court appoints the same person to act as both guardian of the person and estate for the individual.
So What Does This All Mean?
A power of attorney is a relatively low-cost and private way to decide which family member or trusted friend will have the legal authority to carry out your wishes if you can no longer speak or act for yourself. If you do not have a power or attorney or if your power of attorney is not drafted properly, and something happens that results in your inability to make decisions, your family/friends may later face court proceedings and court supervised Guardianship and/or Conservatorship.
A court proceeding is not only costly, but the person appointed as you Guardian/Conservator may not be the person whom you would have chosen yourself.