life planning documents
A Living Will is also known as an Advance Directive For A Natural Death. In plain terms, it is a document that expresses what forms of medical treatment you want to receive when you are faced with certain life ending medical conditions.
In years past, Living Wills were very short and merely had you initial a line to say whether you want to be kept alive by heroic measures if you are getting ready to die.
Most people refer to this as “pulling the plug”. However, several years ago, our Raleigh law firm decided to expand the language in our Living Wills to include various medical conditions and various treatment options. In other words, a client can now customize her Living Will to meet her end of life wishes.
What Conditions Make a Living Will Effective?
The three main medical conditions that cause a Living Will to become effective are as follows:
- you develop an incurable or irreversible medical condition that will result in your death within a relatively short period of time;
- you become unconscious and your health care providers determine that, to a high degree of medical certainty, you will never regain consciousness
you suffer from advanced dementia or any other condition which results in the substantial loss of your cognitive ability and your health care providers determine that, to a high degree of medical certainty, this loss is not reversible.
- When signing your Living Will, you can determine if you want your life extended if you have one of the foregoing medical conditions.
Another important aspect of your Living Will is that you can make a determination in writing as to whether you want artificial hydration or artificial nutrition to remain in place if it will extend your life. In other words, do you want an IV or a feeding tube? This can often be a difficult decision for family members to make for you. It is best if you put your wishes in writing while you still have the ability to make the decisions yourself.
Often, your family members do not know your wishes and are left with the enormous burden of making decisions for you. We always suggest putting your wishes in writing through the execution of a Living Will, no matter what your wishes. Your wishes cannot be “right” or “wrong”. They are simply your wishes which your family needs to know.
POWER OF ATTORNEY
What is Power of Attorney in North Carolina?
Power of attorney or (POA) is the legally authorized representation to act on another person’s behalf regarding private matters, business or other legal matters. The person who appoints permission is the principle or grantor. The person that is appointed to act as the Power of Attorney is the called the agent.
North Carolina Recognizes 2 Forms of Power of Attorney: Financial and Health Care
There are terms that are used that may be confusing regarding North Carolina Power of Attorney laws. Due to several terms such as General, Durable, Limited Power of Attorney, etc. the legal team of Kirk, Kirk, Howell, Cutler & Thomas, LLP provide some insight into the differing factors that constitute a Power of Attorney Clause in the North Carolina legal system.
Financial Power of Attorney
Power of Attorney to conduct financial matters for the grantor. This could be purchasing real estate, depositing payroll into bank accounts, liquidating assets and more.
Limitations of the Power of Attorney Agreement
Special or Limited Power of Attorney
Actions are limited by strict guidelines preventing the agent from acting outside the desires of the grantor. A limited POA agreement explicitly details what an agent is allowed do to as a representative on your behalf.
Temporarily Limited Power of Attorney
Granting power of attorney for a specific time frame. After the time frame expires, the Power of Attorney agreement is no longer lawful.
General Power of Attorney
Allows the agent to make all decisions for the grantor be it business or personal.
The assignment of a General Power of Attorney gives an agent the legal authority to make decisions regarding legal, financial and other personal decisions. A general power of attorney agreement is commonly used for the care of the elderly and estate planning. Once granted, the Power of Attorney is considered effective immediately.
Only decisions related to medical treatment and life ending decisions are omitted.
A few examples of matters that can be covered by an agent:
- Real estate property transactions
- Banking transactions
- Social Security and unemployment
- Tax representation
- Personal affairs etc.
- Durable Power of Attorney
- Giving power of attorney to an agent due to the mental for physical incompetence of the grantor.
Due to specific clause in the Power of Attorney agreement, an agent may remain as the Power of Attorney with Durable provisions, that during which the time of the grantor becomes mentally or physically incapacitated. This means that unlike the General POA, which terminates upon incapacity due to illness, the Durable POA continues and the agent can act on behalf of the grantor until death. This clause must be added to the Power of Attorney agreement, otherwise the agreement defaults to the General provision.
Health Care Power of Attorney
The Power of Attorney for Health Care allows the agent to make health care related decisions for the grantor. If the grantor wishes, they can include the authority of the agent to make the decision for continued life support or discontinuing health care.
Typically, this POA only becomes valid after a health care provider legally pronounces the grantor to be incompetent or unable to communicate or make sound health care decisions. The power of attorney ends after the death of the grantor.
A Living Will
This is the legal documentation outlining the wishes of a person, relating to their health care and end of life decision, but not granting another person the power to act as the agent in health related decisions.
Power of Attorney for Military Personnel or Those Living Abroad
North Carolina residents living abroad can grant Power of Attorney to an agent to conduct daily business on their behalf. Living outside the confines of US borders can create hindrances to payment of bills, cashing of payroll checks, etc. This representation allows someone to handle financial and legal matters when the grantor is unable or cannot easily take care of the business.
People who use power of attorney are:
- Military personnel
- Overseas contractors
- Business personnel who travel frequently outside the US
Making a Power of Attorney Agreement Legal
For a Power of Attorney agreement to be legal, the document must be signed by both the grantor and agent, witnessed by two additional people and notarized. Once completed, the agent can begin acting on the behalf of the grantor immediately. Only if the grantor becomes ill or mentally incapacitated with the authority cease.
Springing – this provision specifies that the POA agreement only become active in the event of incapacity.
The powers specifically granted to the agent are only given to that agent. Power cannot be transferred from one agent to another.
Changes to the Power of Attorney Act in North Carolina
As of January 1, 2018 the NC legislature have enacted a new Power of Attorney Act N.C.G.S. 32C to update on the previously existing statute. The changes are in effect to help reduce the abuse of power by Financial Power of Attorney agents. The new statute allows for a person to petition against the current agent, with claims of abuse of power that could hurt the well being of the grantor.
An attempt of petition to the clerk of courts can be for:
- the removal
- the suspension
- or limiting the authority of the agent
The new provision allows for better accountability of agents and grantors should be aware of should the event of a petition arise.