Often throughout life unexpected circumstances may arise that we have no control over, but we do have control of the way we plan and prepare ourselves for those circumstances. We often do not like to think about the inevitability of death or a potential for incapacity, but if we take the opportunity to prepare for it, we can make things easier for ourselves, our family, and our loved ones.
Healthcare Power of Attorney
Imagine you are in a bad accident. You are unconscious and taken to the emergency room. The doctors need to induce a coma but first they must get the approval of family members. You are unmarried with several siblings or you are married with grown children and your spouse isn’t in the best health. Who will make the decision about whether to proceed with particular medical procedures if you cannot speak for yourself?
A Healthcare Power of Attorney (“Healthcare POA”) is designed to give someone you trust, the power to make medical decisions upon your incapacity. Thus, if a physician determines that you lack the capacity to make or communicate decisions relating to your health care, then the person you selected in your Healthcare POA becomes your Healthcare Agent and the authority granted in your Healthcare POA becomes effective. Your Healthcare Agent’s authority to make such decisions will remain in effect during incapacity or until death. Naming someone in advanced as your power of attorney is typically more cost effective than going through the court process in naming a guardian for you.
Because your Healthcare Agent can make any of the health care decisions that you could make for yourself, you should discuss your wishes concerning life prolonging measures and other healthcare decisions with your Healthcare Agent to ensure that your wishes are followed. A Healthcare POA also allows you to place some limitations or restrictions on health care decisions your healthcare agent may make. These limitations may include: (1) the healthcare agent’s ability to withhold artificial nutrition or hydration, (2) limitations on specific treatments that are inconsistent with your religious beliefs or views, (3) limitations on mental health treatment, (4) autopsy and disposition of body, and (5) organ donation.
A Healthcare Power of Attorney is intended to be valid in any jurisdiction in which they are presented. In order for your Healthcare POA to be valid in North Carolina, the document must be signed by the person designating a healthcare agent in the presence of two witnesses and a notary public who must also sign. Also, North Carolina has an online registry where you may file Healthcare POA’s for easy access for yourself, healthcare professionals, and family members. You may access information on registering your Healthcare POA with the NC Secretary of State online at www.nclifelinks.org. As long as you are competent, you may revoke a Healthcare POA by a signed writing or in a clear and consistent manner to your agent or health care provider.
General (or Durable) Power of Attorney
Do you own your business and have several employees working directly for you or do you live alone and have a mortgage with other monthly bills? What will happen if you are unable to make financial or other non-medical decisions? Who can handle the responsibilities and obligations for you when something happens to you?
A Durable Power of Attorney (“Durable POA”) is a document designed to allow you select an agent to act for you, in your place, in accordance to a specified list of acts and powers. A Durable POA can be effective immediately or may become effective upon the occurrence of several circumstances, depending on how you want the document drafted. A “Springing” Durable POA becomes effective if: you instruct your agent in writing to exercise their powers, two licensed physicians certify in writing that you no longer have capacity to act effectively in financial affairs (and until two physicians certify in writing that capacity has been restored), or the agent cannot communicate with the principal by normal means of communication and reasonably believes that action should be taken. 
A Durable POA is an opportunity for you to appoint someone to make decisions for you if you are unable to make them yourself and you also have an opportunity to limit the authority given to the agent. Generally, the powers given to an agent through a Durable POA include but are not limited to:
- The power to manage bank accounts including the power to endorse checks, make deposits and withdrawals, and to open, close, or continue such account;
- The power to manage, operate, protect, and conserve securities, properties, interests and investments, deal with the income therefrom, to make investments, and to dispose of tangible and intangible property;
- The power to handle the formation, continuance, or termination of any contract;
- The power to borrow money;
- The power to collect indebtedness;
- The power to buy, sell, mortgage, etc. real property;
- The power to employ nurses and doctors, attorneys at law, etc and to pay salaries and wages;
- The power to assert, defend, arbitrate, or otherwise deal with any claims;
- The power to handle all tax returns;
- The power to pay all bills necessary or desirable for the principals comfortable living;
- The power to exercise all of the powers granted to fiduciaries in the North Carolina General Statutes Section 32-27 and the powers conferred to an attorney-in-fact under the North Carolina General Statutes Section 32A-2.
Additionally, you may have a Durable POA executed for one specific activity such as the power to sell your home for you while you are out of the country, etc. A valid Durable POA in North Carolina requires the document to be executed pursuant to Article 2 of Chapter 32A of the North Carolina General Statutes. The document must be signed by the principal in the presence of a notary public who must then sign the document. You may also have your POA registered in Register of Deeds Office in the County listed on the document.
[In Part 2, we will discuss the Living Will (Advanced Directive) and the Will]
