Official Comment

This Act, which replaces the Uniform Durable Power of Attorney Act (1979/1987), does not contain the word “durable” in the title. Pursuant to Section 104, a power of attorney created under the Act is durable unless the power of attorney provides that it is terminated by the incapacity of the principal.

North Carolina Comment

The short title differs from the title of former Article 2 of Chapter 32A by not including the word “durable” in the title. Under G.S. 32C-1-104 , a power of attorney created pursuant to this Chapter is durable unless it expressly states otherwise.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former G.S. 32A-1 .

Power to Make Gifts of Property Generally. —

Since the power to make a gift of the principal’s property is potentially hazardous or adverse to the principal’s interests, such power will not be lightly inferred from broad grants of power contained in a general power of attorney. Whitford v. Gaskill, 345 N.C. 475 , 480 S.E.2d 690, 1997 N.C. LEXIS 20 , modified, 345 N.C. 762 , 489 S.E.2d 177, 1997 N.C. LEXIS 284 (1997).

Power of attorney set forth in this section and the powers granted attorneys-in-fact by G.S. 32A-2(1), standing alone, do not authorize an attorney-in-fact to make gifts of the principal’s real property. Whitford v. Gaskill, 345 N.C. 475 , 480 S.E.2d 690, 1997 N.C. LEXIS 20 , modified, 345 N.C. 762 , 489 S.E.2d 177, 1997 N.C. LEXIS 284 (1997).

The basic premise behind the majority rule that a general power of attorney does not include authority to make gifts of property, is that an attorney-in-fact is presumed to act in the best interests of the principal. Whitford v. Gaskill, 345 N.C. 475 , 480 S.E.2d 690, 1997 N.C. LEXIS 20 , modified, 345 N.C. 762 , 489 S.E.2d 177, 1997 N.C. LEXIS 284 (1997).

Power to Make Gift of Real Property Conferred. —

Where power of attorney executed by decedent went beyond the short form and expressly provided that attorney-in-fact’s powers were to include the power to transfer real estate, the document did expressly confer upon the attorney-in-fact the power to make a gift of real property. Whitford v. Gaskill, 345 N.C. 475 , 480 S.E.2d 690, 1997 N.C. LEXIS 20 , modified, 345 N.C. 762 , 489 S.E.2d 177, 1997 N.C. LEXIS 284 (1997).

Use of Nonstatutory Form. —

Wife properly executed a power of attorney incorporating by reference the statutory definition of real property transactions found in G.S. 32A-2(1) because, although the parties did not use the statutory short form provided in G.S. 32A-1 , they could use a different form and incorporate by reference G.S. 32A-2 pursuant to G.S. 32A-3. In re Doerfer, 2006 Bankr. LEXIS 3085 (Bankr. M.D.N.C. Nov. 1, 2006).

Nonstatutory power of attorney that incorporated by reference the statutory definition of real property transactions found in G.S. 32A-2(1) was valid even though it did not contain the warning language required by G.S.32A-1 because, by incorporating the statutory definition, the parties did not automatically bind themselves to use the statutory power of attorney. In re Doerfer, 2006 Bankr. LEXIS 3085 (Bankr. M.D.N.C. Nov. 1, 2006).

OPINIONS OF ATTORNEY GENERAL

EDITOR’S NOTE.— The opinions cited below were decided under former G.S. 32A-1 .

Official Comment

Although most of the definitions in Section 102 are self-explanatory, a few of the terms warrant further comment.

“Agent” replaces the term “attorney in fact” used in the Uniform Durable Power of Attorney Act (1979/1987) to avoid confusion in the lay public about the meaning of the term and the difference between an attorney in fact and an attorney at law. Agent was also used in the Uniform Statutory Form Power of Attorney Act (1988) which this Act supersedes.

“Incapacity” replaces the term “disability” used in the Uniform Durable Power of Attorney Act (1979/1987) in recognition that disability does not necessarily render an individual incapable of property and business management. The definition of incapacity stresses the operative consequences of the individual’s impairment-inability to manage property and business affairs-rather than the impairment itself. The definition of incapacity in the Act is also consistent with the standard for appointment of a conservator under Section 401 of the Uniform Guardianship and Protective Proceedings Act (1997) (Section 5-401 of the Uniform Probate Code (2011)).

The definition of “power of attorney” clarifies that the term applies to any grant of authority in a writing or other record from a principal to an agent which appears from the grant to be a power of attorney, without regard to whether the words “power of attorney” are actually used in the grant.

“Presently exercisable general power of appointment” is defined to clarify that where the phrase appears in the Act it does not include a power exercisable by the principal in a fiduciary capacity or exercisable only by will. Cf. Restatement (Third) of Property (Wills and Don. Trans.) § 19.8 cmt. d (Tentative Draft No. 5, approved 2006) (noting that unless the donor of a presently exercisable power of attorney has manifested a contrary intent, it is assumed that the donor intends that the donee’s agent be permitted to exercise the power for the benefit of the donee). Including in a power of attorney the authority to exercise a presently exercisable general power of appointment held by the principal is consistent with the objective of giving an agent comprehensive management authority over the principal’s property and financial affairs. The term appears in Section 211 (Estates, Trusts, and Other Beneficial Interests) in the context of authority to exercise for the benefit of the principal a presently exercisable general power of appointment held by the principal ( see Section 211(b)(3)), and in Section 217 (Gifts) in the context of authority to exercise for the benefit of someone else a presently exercisable general power of appointment held by the principal (see Section 217(b)(1)). The term is also incorporated by reference when using the statutory form in Section 301 to grant authority with respect to “Estates, Trusts, and Other Beneficial Interests” or authority with respect to “Gifts.” If a principal wishes to delegate authority to exercise a power that the principal holds in a fiduciary capacity, Section 201(a)(7) requires that the power of attorney contain an express grant of such authority. Furthermore, delegation of a power held in a fiduciary capacity is possible only if the principal has authority to delegate the power, and the agent’s authority is necessarily limited by whatever terms govern the principal’s ability to exercise the power.

North Carolina Comment

The definitions in this section are new to North Carolina power of attorney law. Article 2 of Chapter 32A only defined “durable power of attorney” in former G.S. 32A-8 .

This section modified Section 102 of the Uniform Power of Attorney Act by adding subdivision (4) to define “entity” and subdivision (7) to define “Internal Revenue Code”.

In addition this section omitted subdivision (8) of Section 102 defining “presently exercisable general power of appointment” because it was substantially identical to the definition in G.S. 31D-1-102(15) of the North Carolina Uniform Powers of Appointment Act which the drafters concluded would be applicable to the provisions of this Chapter.

References in the Official Comment to “presently exercisable general power of appointment” in Section 102(8) or references to “Section 102(8)” should be understood to refer to the definition in G.S. 31D-1-102(15) of the North Carolina Uniform Powers of Appointment Act.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

The Uniform Power of Attorney Act (2006) is intended to be comprehensive with respect to delegation of surrogate decision making authority over an individual’s property and property interests, whether for the purpose of incapacity planning or mere convenience. Given that an agent will likely exercise authority at times when the principal cannot monitor the agent’s conduct, the Act specifies minimum agent duties and protections for the principal’s benefit. These provisions, however, may not be appropriate for all delegations of authority that might otherwise be included within the definition of a power of attorney. Section 103 lists delegations of authority that are excluded from the Act because the subject matter of the delegation, the objective of the delegation, the agent’s role with respect to the delegation, or a combination of the foregoing, would make application of the Act’s provisions inappropriate.

Paragraph (1) excludes a power to the extent that it is coupled with an interest in the subject of the power. This exclusion addresses situations where, due to the agent’s interest in the subject matter of the power, the agent is not intended to act as the principal’s fiduciary. See Restatement (Third) of Agency § 3.12 (2006) and M.T. Brunner, Annotation, What Constitutes Power Coupled with Interest within Rule as to Termination of Agency, 28 A.L.R.2d 1243 (1953). Common examples of powers coupled with an interest include powers granted to a creditor to perfect or protect title in, or to sell, pledged collateral. While the example of “a power given to or for the benefit of a creditor in connection with a credit transaction” is highlighted in paragraph (1), it is not meant to exclude application of paragraph (1) to other contexts in which a power may be coupled with an interest, such as a power held by an insurer to settle or confess judgment on behalf of an insured. See, e.g., Hayes v. Gessner, 52 N.E.2d 968 (Mass. 1944).

Paragraph (2) excludes from the Act delegations of authority to make health-care decisions for the principal. Such delegations are covered under other law of the jurisdiction. The Act recognizes, however, that matters of financial management and health-care decision making are often interdependent. The Act consequently provides in Section 114(b)(5) a default rule that an agent under the Act must cooperate with the principal’s health-care decision maker.

Likewise, paragraph (3) excludes from the Act a proxy or other delegation to exercise voting rights or management rights with respect to an entity. The rules with respect to those rights are typically controlled by entity-specific statutes within a jurisdiction. See, e.g., Model Bus. Corp. Act § 7.22 (2002); Unif. Ltd. Partnership Act § 118 (2001); and Unif. Ltd. Liability Co. Act § 404(e) (1996). Notwithstanding the exclusion of such delegations from the operation of this Act, Section 209 contemplates that a power granted to an agent with respect to operation of an entity or business includes the authority to “exercise in person or by proxy . . . a right, power, privilege, or option the principal has or claims to have as the holder of stocks and bonds . . . .”( see paragraph (5) of Section 209). Thus, while a person that holds only a proxy pursuant to an entity voting statute will not be subject to the provisions of this Act, an agent that is granted Section 209 authority is subject to the Act because the principal has given the agent authority that is greater than that of a mere voting proxy. In fact, typical entity statutes contemplate that a principal’s agent or “attorney in fact” may appoint a proxy on behalf of the principal. See, e.g., Model Bus. Corp. Act § 7.22 (2002); Unif. Ltd. Partnership Act § 118 (2001); and Unif. Ltd. Liability Co. Act § 404(e) (1996).

Paragraph (4) excludes from the Act any power created on a governmental form for a governmental purpose. Like the excluded powers in paragraphs (2) and (3), the authority for a power created on a governmental form emanates from other law and is generally for a limited purpose. Notwithstanding this exclusion, the Act specifically provides in paragraph (7) of Section 203 that a grant of authority to an agent includes, with respect to that subject matter, authority to “prepare, execute, and file a record, report, or other document to safeguard or promote the principal’s interest under a statute or governmental regulation.” Section 203, paragraph (8), further clarifies that the agent has the authority to “communicate with any representative or employee of a government or governmental subdivision, agency, or instrumentality, on behalf of the principal.” The intent of these provisions is to minimize the need for a special power on a governmental form with respect to any subject matter over which an agent is granted authority under the Act.

North Carolina Comment

This section is new to North Carolina power of attorney law in providing that this Chapter applies to all powers of attorney except those specifically excluded in the section.

The authority of an agent to make health care decisions, to which this Chapter does not apply, continues to be governed by Article 3 of Chapter 32A.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

Section 104 establishes that a power of attorney created under the Act is durable unless it expressly states otherwise. This default rule is the reverse of the approach under the Uniform Durable Power of Attorney Act and based on the assumption that most principals prefer durability as a hedge against the need for guardianship. See also Section 107 Comment (noting that the default rules of the jurisdiction’s law under which a power of attorney is created, including the default rule for durability, govern the meaning and effect of a power of attorney).

North Carolina Comment

This section reverses prior North Carolina power of attorney law in two respects:

(i) It does not require the power of attorney to provide that it is durable unlike former G.S. 32A-8 which required that a durable power of attorney contain a statement that it was executed pursuant to the provisions of Article 2 of Chapter 32A or the words “This power of attorney shall not be affected by my subsequent incapacity or mental incompetence” or “This power of attorney shall become effective after I become incapacitated or mentally incompetent” or similar words showing the intent of the principal that the power of attorney is durable.

(ii) It does not require, after the principal’s incapacity, that the power of attorney be registered for it to be valid. Registration was required under former G.S. 32A 9(b).

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former G.S. 32A-8 .

Notice of Restriction. —

Summary judgment for plaintiff was error in a suit on notes signed pursuant to a power of attorney executed by defendant because a restriction regarding defendant’s incompetence was a condition precedent to the attorney in fact having power to act on her behalf, and the facts failed to show that defendant was incompetent; thus, the attorney in fact had no authority to act. G.S. 32A-8 contemplated that a durable power of attorney was in writing, and, thus, plaintiff was deemed to be on notice of any “limitation or restriction” contained in the power of attorney, notwithstanding any record notice plaintiff had by virtue of the instrument’s registration with the Register of Deeds. Suntrust Bank v. C & D Custom Homes, LLC, 223 N.C. App. 347, 734 S.E.2d 588, 2012 N.C. App. LEXIS 1259 (2012).

Attorney-in-Fact Did Not Breach Fiduciary Duty. —

Attorney-in-fact did not breach the attorney-in-fact’s fiduciary duty to the attorney-in-fact’s principal by transferring funds from an account the principal held jointly with the principal’s husband to an account the principal held jointly with the attorney-in-fact and then transferring the funds to the attorney-in-fact because (1) the transfer to the account the principal held jointly with the attorney-in-fact carried out the principal’s wishes, (2) the transfer was not a gift, in violation of G.S. 32A-14.1, as the principal was alive and a joint tenant of the account into which the funds were transferred, and (3) the attorney-in-fact moved no funds from the account held jointly with the principal until after the principal died, when the attorney-in-fact owned the funds, pursuant to G.S. 53-146.1 [Repealed. See now G.S. 53C-6-6 ]. Albert v. Cowart, 219 N.C. App. 546, 727 S.E.2d 564, 2012 N.C. App. LEXIS 446 (2012).

North Carolina Comment

This section modified Section 105 of the Uniform Power of Attorney Act by requiring acknowledgment of the signature of the principal or the signature of another individual directed by the principal to sign the principal’s name on the power of attorney in the principal’s conscious presence.

In doing so, the section differs from prior North Carolina power of attorney law in that the acknowledgment of the principal’s signature was not required by former Article 2 of Chapter 32A even though the former Statutory Short Form of General Power of Attorney in former G.S. 32A-1 included an acknowledgment of the principal’s signature, and former G.S. 32A-40 afforded protection to the person who in good faith relied on a writing that was duly signed, acknowledged and otherwise appeared to be regular on its face.

The provision in this section that a power of attorney may be signed by another person who is directed by the principal to sign in the principal’s name on the power of attorney in the principal’s “conscious presence” is new to North Carolina law. The “conscious presence” test is more expansive than, for example, the standard for an attesting witness signing a will “in the testator’s presence” under G.S. 31-3.3(d) meaning where the testator is in a position that the testator would be capable of seeing the witness sign the will. See In re Cherry’s Will, 164 N.C. 363 , 79 S.E. 288 (1913).

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

One of the purposes of the Uniform Power of Attorney Act (2006) is promotion of the portability and use of powers of attorney. Section 106 makes clear that the Act does not affect the validity of pre-existing powers of attorney executed under prior law in the enacting jurisdiction, powers of attorney validly created under the law of another jurisdiction, and military powers of attorney. While the effect of this section is to recognize the validity of powers of attorney created under other law, it does not abrogate the traditional grounds for contesting the validity of execution such as forgery, fraud, or undue influence.

This section also provides that unless another law in the jurisdiction requires presentation of the original power of attorney, a photocopy or electronically transmitted copy has the same effect as the original. An example of another law that might require presentation of the original power of attorney is the jurisdiction’s recording act. See, e.g., Restatement (Third) of Property (Wills & Don. Trans.) § 6.3 cmt. e (2003) (noting that in order to record a deed, “some states require that the document of transfer be signed, sealed, attested, and acknowledged”).

North Carolina Comment

This section has no counterpart in prior North Carolina power of attorney law.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

This section recognizes that a foreign power of attorney, or one executed before the effective date of the Uniform Power of Attorney Act, may have been created under different default rules than those in this Act. Section 107 provides that the meaning and effect of a power of attorney is to be determined by the law under which it was created. For example, the law in another jurisdiction may provide for different default rules with respect to durability of a power of attorney ( see Section 104), the authority of coagents ( see Section 111) or the scope of specific authority such as the authority to make gifts ( see Section 217). Section 107 clarifies that the principal’s intended grant of authority will be neither enlarged nor narrowed by virtue of the agent using the power in a different jurisdiction. For a discussion of the issues that can arise with inter-jurisdictional use of powers of attorney, see Linda S. Whitton, Crossing State Lines with Durable Powers, Prob. & Prop., Sept./Oct. 2003, at 28.

This section also establishes an objective means for determining what jurisdiction’s law the principal intended to govern the meaning and effect of a power of attorney. The phrase, “the law of the jurisdiction indicated in the power of attorney,” is intentionally broad, and includes any statement or reference in a power of attorney that indicates the principal’s choice of law. Examples of an indication of jurisdiction include a reference to the name of the jurisdiction in the title or body of the power of attorney, citation to the jurisdiction’s power of attorney statute, or an explicit statement that the power of attorney is created or executed under the laws of a particular jurisdiction. In the absence of an indication of jurisdiction in the power of attorney, Section 107 provides that the law of the jurisdiction in which the power of attorney was executed controls. The distinction between “the law of the jurisdiction indicated in the power of attorney” and “the law of the jurisdiction in which the power of attorney was executed” is an important one. The common practice of property ownership in more than one jurisdiction increases the likelihood that a principal may execute in one jurisdiction a power of attorney that was created and intended to be interpreted under the laws of another jurisdiction. A clear indication of the jurisdiction’s law that is intended to govern the meaning and effect of a power of attorney is therefore advisable in all powers of attorney. See, e.g., Section 301 (providing for the name of the jurisdiction to appear in the title of the statutory form power of attorney).

North Carolina Comment

This section is new to North Carolina power of attorney law.

This section is new to North Carolina power of attorney law. The Statutory Short Form Power of Attorney in G.S. 32C-3-301 and the Limited Power of Attorney for Real Property in G.S. 32C-3-303 provide that the meaning and effect of the power of attorney shall for all purposes be determined by the law of the State of North Carolina.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

North Carolina Comment

Subsection (a) and (b) modified these subsections of Section 108 of the Uniform Power of Attorney Act to include “general guardian” and to substitute “clerk of superior court” for “courts” to conform to North Carolina law.

The first two sentences of subsection (a), as so modified, are almost identical to former G.S. 32A-10(b) providing generally that a principal may nominate in the power of attorney a guardian of his estate or guardian of the person for consideration by the clerk of superior court if protective proceedings for the principal are commenced and that the clerk of superior court shall make the appointment in accordance with that nomination except for good cause or disqualification.

Subsection (a), however, modified subsection (a) of Section 108 of the Uniform Power of Attorney Act by adding the last sentence to clarify that the nomination of a guardian of the person in the health care power of attorney provided for in G.S. 32A-22(b) shall have control over any such nomination in a power of attorney.

The first sentence of subsection (b) is consistent with the first sentence of former G.S. 32A-10(a) providing generally that if the court appoints a guardian or other fiduciary for the principal, the agent is accountable to that fiduciary as well as to the principal.

Subsection (b) modifies that subsection of Section 108 of the Uniform Power of Attorney Act by substituting the words “in accordance with the Chapter” in place of the words “by the court”. This change was made to take into account the power to terminate a power of attorney and the authority of the agent (i) by a guardian of the estate or a general guardian pursuant to G.S. 32C-1-110(a)(7) and (b)(5) which modified Section 110 of the Uniform Power of Attorney Act in this regard, and (ii) by the clerk of superior court who also has the authority to “limit or suspend” authority of an agent pursuant to G.S. 32C-1-116(a)(2) where a guardian of the estate or general guardian has been appointed.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Effect of Amendments.

Session Laws 2018-142, s. 27(a), effective December 15, 2018, rewrote the second sentence of subsection (b).

Official Comment

This section establishes a default rule that a power of attorney is effective when executed. If the principal chooses to create what is commonly known as a “springing” or contingent power of attorney-one that becomes effective at a future date or upon a future event or contingency-the principal may authorize the agent or someone else to provide written verification that the event or contingency has occurred (subsection (b)). Because the person authorized to verify the principal’s incapacitation will likely need access to the principal’s health information, subsection (d) qualifies that person to act as the principal’s “personal representative” for purposes of the Health Insurance Portability and Accountability Act (HIPAA). See 45 C.F.R. § 164.502(g)(1)-(2) (2006) (providing that for purposes of disclosing an individual’s protected health information, “a covered entity must . . . treat a personal representative as the individual”). Section 109 does not, however, empower the agent to make health-care decisions for the principal. See Section 103 and comment (discussing exclusion from this Act of powers to make health-care decisions).

The default rule reflects a “best practices” philosophy that any agent who can be trusted to act for the principal under a springing power of attorney should be trustworthy enough to hold an immediate power. Survey evidence suggests, however, that a significant number of principals still prefer springing powers, most likely to maintain privacy in the hope that they will never need a surrogate decision maker. See Linda S. Whitton, National Durable Power of Attorney Survey Results and Analysis, National Conference of Commissioners on Uniform State Laws, 6-7 (2002), http://www.law.upenn.edu/bll/ulc/dpoaa/surveyoct2002.htm (reporting that 23% of lawyer respondents found their clients preferred springing powers, 61% reported a preference for immediate powers, and 16% saw no trend; however, 89% stated that a power of attorney statute should authorize springing powers).

If the principal’s incapacity is the trigger for a springing power of attorney and the principal has not authorized anyone to make that determination, or the authorized person is unable or unwilling to make the determination, this section provides a default mechanism to trigger the power. Incapacity based on the principal’s impairment may be verified by a physician or licensed psychologist (subsection (c)(1)), and incapacity based on the principal’s unavailability ( i.e. , the principal is missing, detained, or unable to return to the United States) may be verified by an attorney at law, judge, or an appropriate governmental official (subsection (c)(2)). Examples of appropriate governmental officials who may be in a position to determine that the principal is incapacitated within the meaning of Section 102(5)(B) include an officer acting under authority of the United States Department of State or uniformed services of the United States or a sworn federal or state law enforcement officer. The default mechanism for triggering a power of attorney is available only when no incapacity determination has been made. It is not available to challenge the determination made by the principal’s authorized designee.

North Carolina Comment

Subsection (a) is somewhat similar to, but is more comprehensive, than former G.S. 32A-8 which provided that, as one alternative, the power of attorney “shall become effective after I become incapacitated or mentally incompetent”.

Subsection (b) is new to North Carolina power of attorney law.

Subdivision (c)(1) modifies that subdivision of Section 109 of the Uniform Power of Attorney Act as follows:

(i) It requires two individuals who are physicians, licensed psychologists or both to determine the principal’s incapacity, rather than only one of such persons as required by the Uniform Power of Attorney Act,

(ii) It requires a personal examination of the principal by such individuals before a determination of the principal’s incapacity is made, and

(iii) It adds the last sentence to clarify that when a power of attorney becomes effective under this subsection (c), the effectiveness of the power of attorney continues after the subsequent capacity of the principal unless the power of attorney is terminated pursuant to G.S. 32C-1-110(a) or the agent’s authority is terminated pursuant to G.S. 32C-1-110(b).

References in the Official Comment to “a physician or licensed psychologist” should be understood to refer to two individuals who are either a physician, a licensed psychologist, or both, after a physical examination of the principal. Also, references to “Section 102(5)(B)” in the Official Comment should be understood to refer to G.S. 32C-1-102(6) b.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Effect of Amendments.

Session Laws 2018-142, s. 28(a), effective December 15, 2018, in subdivision (c)(1), substituted “G.S. 32C-1-102(6)a.” for “G.S. 32C-1-102(5)a.” at the end; in subdivision (c)(2), substituted “G.S. 32C-1-102 (6)b.” for “G.S. 32C-1-102(6)b.” at the end.

Official Comment

This section addresses termination of a power of attorney or an agent’s authority under a power of attorney. It first lists termination events ( see subsections (a) and (b)), and then lists 20 circumstances that, in contrast, either do not invalidate the power of attorney ( see subsections (c) and (f)) or the actions taken pursuant to the power of attorney ( see subsections (d) and (e)).

Subsection (c) provides that a power of attorney under the Act does not become “stale.” Unless a power of attorney provides for termination upon a certain date or after the passage of a period of time, lapse of time since execution is irrelevant to validity, a concept carried over from the Uniform Durable Power of Attorney Act (1979/1987). See Unif. Durable Power of Atty. Act § 1 (as amended in 1987). Similarly, subsection (f) clarifies that a subsequently executed power of attorney will not revoke a prior power of attorney by virtue of inconsistency alone. To effect a revocation, a subsequently executed power of attorney must expressly revoke a previously executed power of attorney or state that all other powers of attorney are revoked. The requirement of express revocation prevents inadvertent revocation when the principal intends for one agent to have limited authority that overlaps with broader authority held by another agent. For example, the principal who has given one agent a very broad power of attorney, including general authority with respect to real property, may later wish to give another agent limited authority to execute closing documents with respect to out-of-town real estate.

Subsections (d) and (e) emphasize that even a termination event is not effective as to the agent or person who, without actual knowledge of the termination event, acts in good faith under the power of attorney. For example, the principal’s death terminates a power of attorney ( see subsection (a)(1)), but an agent who acts in good faith under a power of attorney without actual knowledge of the principal’s death will bind the principal’s successors in interest with that action ( see subsection (d)). The same result is true if the agent knows of the principal’s death, but the person who accepts the agent’s apparent authority has no actual knowledge of the principal’s death. See Restatement (Third) of Agency § 3.11 (2006) (stating that “termination of actual authority does not by itself end any apparent authority held by an agent”). See also Section 119(c) (stating that “[a] person that in good faith accepts an acknowledged power of attorney without actual knowledge that the power of attorney is . . . terminated . . . may rely upon the power of attorney as if the power of attorney were . . . still in effect . . . .”). These concepts are also carried forward from the Uniform Durable Power of Attorney Act (1979/1987). See Unif. Durable Power Atty. Act § 4 (1987).

Of special note in the list of termination events is subsection (b)(3) which provides that a spouse-agent’s authority is revoked when an action is filed for the dissolution or annulment of the agent’s marriage to the principal, or their legal separation. Although the filing of an action for dissolution or annulment might render a principal particularly vulnerable to self-interested actions by a spouse-agent, subsection (b)(3) is not mandatory and may be overridden in the power of attorney. There may be special circumstances precipitating the dissolution, such as catastrophic illness and the need for public benefits, that would prompt the principal to specify that the agent’s authority continues notwithstanding dissolution, annulment or legal separation.

North Carolina Comment

Subsections (a) and (b) are new to North Carolina power of attorney law in providing specific events as to when a power of attorney terminates or the agent’s authority terminates although subdivision (a)(6) is somewhat similar to former G.S. 32A-12(b) providing that if all the attorneys-in-fact named in the power of attorney fail to act and no substitution is provided in the power of attorney, it ceases to be effective.

Subsection (a) modified that subsection of the Uniform Power of Attorney Act by adding subdivision (7) providing for termination of the power of attorney by a guardian of the principal’s estate or general guardian. This addition is consistent with former G.S. 32A-10(a) providing that a guardian of the estate has the power to revoke a power of attorney, although G.S. 32A-10(a) differs in authorizing a guardian to “amend” the power of attorney.

Subsection (b) modified that subsection of the Uniform Power of Attorney Act as follows:

(i) Subdivision (b)(1) adds “in writing” to the end to require written termination of the agent’s authority by the principal.

(ii) In subdivision (2) the words “or is removed” were added to the end to provide for termination of the agent’s authority upon the agent’s removal.

(iii) In subdivision (3) the words “the court enters a decree of divorce between the principal and the agent” was substituted in place of the words “an action is filed for the [dissolution] or annulment of the agent’s marriage to the principal or their legal separation” in order to have the language more similar to the provision in G.S. 32A-20(c) revoking a health care power of attorney.

(iv) Subdivision (5) was added to authorize a guardian of the estate or general guardian of the principal to terminate an agent’s authority.

Subsections (c), (d), (e) and (f) are new to North Carolina power of attorney law.

Subsection (g), which is not a part of the Uniform Power of Attorney Act, was added to bring forth the provisions of G.S. 32A-13 providing the methods to revoke a power of attorney, but modified in subdivision (g)(1) to provide that proof of service must be made under Rule 5 rather than Rule 4 of the North Carolina Rules of Civil Procedure and in subdivision (g)(2) which eliminated the requirement of delivery of the revocatory instrument to the agent.

In the next to last sentence of the third paragraph of the Official Comment, the reference to “an acknowledged power of attorney” should be understood to mean an acknowledged or unacknowledged power of attorney. In addition, in the last paragraph the words “the court enters a decree of divorce between the principal and the agent” should be substituted for the words “an action is filed for the dissolution or annulment of the agent’s marriage to the principal or their legal separation.”

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

This section provides several default rules that merit careful consideration by the principal. Subsection (a) states that if a principal names coagents, each coagent may exercise its authority independently unless otherwise directed in the power of attorney. The Act adopts this default position to discourage the practice of executing separate, co-extensive powers of attorney in favor of different agents, and to facilitate transactions with persons who are reluctant to accept a power of attorney from only one of two or more named agents. This default rule should not, however, be interpreted as encouraging the practice of naming coagents. For a principal who can still monitor the activities of an agent, naming coagents multiplies monitoring responsibilities and significantly increases the risk that inconsistent actions will be taken with the principal’s property. For the incapacitated principal, the risk is even greater that coagents will use the power of attorney to vie for control of the principal and the principal’s property. Although the principal can override the default rule by requiring coagents to act by majority or unanimous consensus, such a requirement impedes use of the power of attorney, especially among agents who do not share close physical or philosophical proximity. A more prudent practice is generally to name one original agent and one or more successor agents. If desirable, a principal may give the original agent authority to delegate the agent’s authority during periods when the agent is temporarily unavailable to serve (see Section 201(a)(5)).

Subsection (b) states that unless a power of attorney otherwise provides, a successor agent has the same authority as that granted to the original agent. While this default provision ensures that the scope of authority granted to the original agent can be carried forward by successors, a principal may want to consider whether a successor agent is an appropriate person to exercise all of the authority given to the original agent. For example, authority to make gifts, to create, amend, or revoke an inter vivos trust, or to create or change survivorship and beneficiary designations ( see Section 201(a)) may be appropriate for a spouse-agent, but not for an adult child who is named as the successor agent.

Subsection (c) provides a default rule that an agent is not liable for the actions of another agent unless the agent participates in or conceals the breach of fiduciary duty committed by that other agent. Consequently, absent specification to the contrary in the power of attorney, an agent has no duty to monitor another agent’s conduct. However, subsection (d) does require that an agent that has actual knowledge of a breach or imminent breach of fiduciary duty must notify the principal, and if the principal is incapacitated, take reasonably appropriate action to safeguard the principal’s best interest. Subsection (d) provides that if an agent fails to notify the principal or to take action to safeguard the principal’s best interest, that agent is only liable for the reasonably foreseeable damages that could have been avoided had the agent provided the required notification.

North Carolina Comment

Subsection (a) is new to North Carolina power of attorney law in providing a default provision that unless the power of attorney expressly requires agents to act jointly, each agent may exercise a coagent’s authority independently.

Subsection (a) modified that subsection of the Uniform Power of Attorney Act as follows:

(i) Language was added to clarify that the principal may expressly require that coagents act jointly.

(ii) Language was also added that a coagent may exercise the authority to act independently “without the knowledge, consent or joinder of any other coagent or coagents.”

(iii) The last sentence was added as a default provision that if any one or more coagents ceases or is unable to act, then the remaining agent or coagents may continue to act.

Subsection (b) is new to North Carolina power of attorney law in providing specific provisions for designation of successor agents and default rules as to the authority granted and when the successor agent may act.

Subsection (c) is also new to North Carolina power of attorney law in providing a default rule that if an agent does not participate in or conceal the breach of fiduciary duty committed by another agent, that agent is not liable for the actions of the other agent.

Subsection (d) of the Uniform Power of Attorney Act is new to North Carolina power of attorney law.

References in the Official Comment to “Section 201(a)(5)” should be understood to refer to G.S. 32C-2-201(a)(1)d.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

North Carolina Comment

Subsection (b), which modified Section 112 of the Uniform Power of Attorney Act providing that an agent is entitled to recover reasonable compensation, brought forward the provisions of former G.S. 32A-11(c) that when the power of attorney does not specify the amount of compensation and the principal is incapacitated, the agent is to receive compensation as determined by the clerk of superior court after considering the factors set forth in G.S. 32-54(b) .

Subsection (c) is generally consistent with G.S. 32-59 which provides for reimbursement for expenses incurred by fiduciaries other than trustees.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Effect of Amendments.

Session Laws 2018-142, s. 29, effective December 15, 2018, in subsection (c), inserted “upon request to the clerk of superior court pursuant to G.S. 32-59 ” following “an agent is entitled.”

Official Comment

This section establishes a default rule for agent acceptance of appointment under a power of attorney. Unless a different method is provided in the power of attorney, an agent’s acceptance occurs upon exercise of authority, performance of duties, or any other assertion or conduct indicating acceptance. Acceptance is the critical reference point for commencement of the agency relationship and the imposition of fiduciary duties ( see Section 114(a)). Because a person may be unaware that the principal has designated the person as an agent in a power of attorney, clear demarcation of when an agency relationship commences is necessary to protect both the principal and the agent. See Karen E. Boxx, The Durable Power of Attorney’s Place in the Family of Fiduciary Relationships, 36 Ga. L. Rev. 1, 41 (2001) (noting that “fiduciary duties should be imposed only to the extent the attorney-in-fact knows of the role, is able to accept responsibility, and affirmatively accepts”). The Act also provides a default method for agent resignation (see Section 118), which terminates the agency relationship ( see Section 110(b)(2)).

North Carolina Comment

This section is somewhat similar to prior North Carolina law. See, e.g., State v. Weaver, 359 N.C. 246 , 258, 607 S.E.2d 599, 606 (2005) (“Agency is a relationship which cannot be forced on a person in invitum”); Holleman v. Aiken, 193 N.C. App. 484, 504-505, 668 S.E.2d 579, 592 (2008) (“An agency relationship arises when parties manifest consent that one shall act on behalf of the other and subject to his [or her] control.”).

The third sentence of the Official Comment should be disregarded because even though acceptance is the critical reference point for commencement of the agency relationship to impose the fiduciary duties in G.S. 32C-1-114(a), Section 114(a) of the Uniform Power of Attorney Act was modified in G.S. 32C-1-114(a) to require an agent to not only accept appointment but to be exercising a power under the power of attorney.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

Although well settled that an agent under a power of attorney is a fiduciary, there is little clarity in state power of attorney statutes about what that means. See generally Karen E. Boxx, The Durable Power of Attorney’s Place in the Family of Fiduciary Relationships, 36 Ga. L. Rev. 1 (2001); Carolyn L. Dessin, Acting as Agent under a Financial Durable Power of Attorney: An Unscripted Role, 75 Neb. L. Rev. 574 (1996). Among states that address agent duties, the standard of care varies widely and ranges from a due care standard ( see, e.g., 755 Ill. Comp. Stat. Ann. 45/2-7 (West 1992); Ind. Code Ann. § 30-5-6-2 (West 1994)) to a trustee-type standard ( see, e.g., Fla. Stat. Ann. § 709.08(8) (West 2000 & Supp. 2006); Mo. Ann. Stat. § 404.714 (West 2001)). Section 114 clarifies agent duties by articulating minimum mandatory duties (subsection (a)) as well as default duties that can be modified or omitted by the principal (subsection (b)).

The mandatory duties-acting in accordance with the principal’s reasonable expectations, if known, and otherwise in the principal’s best interest; acting in good faith; and acting only within the scope of authority granted-may not be altered in the power of attorney. Establishing the principal’s reasonable expectations as the primary guideline for agent conduct is consistent with a policy preference for “substituted judgment” over “best interest” as the surrogate decision-making standard that better protects an incapacitated person’s self-determination interests. See Wingspan-The Second National Guardianship Conference, Recommendations, 31 Stetson L. Rev. 595, 603 (2002). See also Unif. Guardianship & Protective Proc. Act § 314(a) (1997).

The Act does not require, nor does common practice dictate, that the principal state expectations or objectives in the power of attorney. In fact, one of the advantages of a power of attorney over a trust or guardianship is the flexibility and informality with which an agent may exercise authority and respond to changing circumstances. However, when a principal’s subjective expectations are potentially inconsistent with an objective best interest standard, good practice suggests memorializing those expectations in a written and admissible form as a precaution against later challenges to the agent’s conduct ( see Section 116).

If a principal’s expectations potentially conflict with a default duty under the Act, then stating the expectations in the power of attorney, or altering the default rule to accommodate the expectations, or both, is advisable. For example, a principal may want to invest in a business owned by a family member who is also the agent in order to improve the economic position of the agent and the agent’s family. Without the principal’s clear expression of this objective, investment by the agent of the principal’s property in the agent’s business may be viewed as breaching the default duty to act loyally for the principal’s benefit (subsection (b)(1)) or the default duty to avoid conflicts of interest that impair the agent’s ability to act impartially for the principal’s best interest (subsection (b)(2)).

Two default duties in this section protect the principal’s previously-expressed choices. These are the duty to cooperate with the person authorized to make health-care decisions for the principal (subsection (b)(5)) and the duty to preserve the principal’s estate plan (subsection (b)(6)). However, an agent has a duty to preserve the principal’s estate plan only to the extent the plan is actually known to the agent and only if preservation of the estate plan is consistent with the principal’s best interest. Factors relevant to determining whether preservation of the estate plan is in the principal’s best interest include the value of the principal’s property, the principal’s need for maintenance, minimization of taxes, and eligibility for public benefits. The Act protects an agent from liability for failure to preserve the estate plan if the agent has acted in good faith (subsection (c)).

Subsection (d) provides that an agent acting with care, competence, and diligence for the best interest of the principal is not liable solely because the agent also benefits from the act or has a conflict of interest. This position is a departure from the traditional common law duty of loyalty which required an agent to act solely for the benefit of the principal. See Restatement (Second) of Agency § 387 (1958); see also Unif. Trust Code § 802(a) (2003) (requiring a trustee to administer a trust “solely in the interests” of the beneficiary). Subsection (d) is modeled after state statutes which provide that loyalty to the principal can be compatible with an incidental benefit to the agent. See Cal. Prob. Code § 4232(b) (West Supp. 2006); 755 Ill. Comp. Stat. Ann. 45/2-7 (West 1992); Ind. Code Ann. § 30-5-9-2 (West 1994 & Supp. 2005). The Restatement (Third) of Agency § 8.01 (2006) also contemplates that loyal service to the principal may be concurrently beneficial to the agent ( see Reporter’s note a). See also John H. Langbein, Questioning the Trust Law Duty of Loyalty: Sole Interest or Best Interest?, 114 Yale L.J. 929, 943 (2005) (arguing that the sole interest test for loyalty should be replaced by the best interest test). The public policy which favors best interest over sole interest as the benchmark for agent loyalty comports with the practical reality that most agents under powers of attorney are family members who have inherent conflicts of interest with the principal arising from joint property ownership or inheritance expectations.

Subsection (e) provides additional protection for a principal who has selected an agent with special skills or expertise by requiring that such skills or expertise be considered when evaluating the agent’s conduct. If a principal chooses to appoint a family member or close friend to serve as an agent, but does not intend that agent to serve under a higher standard because of special skills or expertise, the principal should consider including an exoneration provision within the power of attorney ( see comment to Section 115).

Subsections (f) and (g) state protections for an agent that are similar in scope to those applicable to a trustee. Subsection (f) holds an agent harmless for decline in the value of the principal’s property absent a breach of fiduciary duty ( cf. Unif. Trust Code § 1003(b) (2003)). Subsection (g) holds an agent harmless for the conduct of a person to whom the agent has delegated authority, or who has been engaged by the agent on the principal’s behalf, provided the agent has exercised care, competence, and diligence in selecting and monitoring the person ( cf. Unif. Trust Code § 807(c) (2003).

Subsection (h) codifies the agent’s common law duty to account to a principal (see Restatement (Third) of Agency § 8.12 (2006); Restatement (First) of Agency § 382 (1933)). Rather than create an affirmative duty of periodic accounting, subsection (h) states that the agent is not required to disclose receipts, disbursements or transactions unless ordered by a court or requested by the principal, a fiduciary acting for the principal, or a governmental agency with authority to protect the welfare of the principal. If the principal is deceased, the principal’s personal representative or successor in interest may request an agent to account. While there is no affirmative duty to account unless ordered by the court or requested by one of the foregoing persons, subsection (b)(4) does create a default duty to keep records.

The narrow categories of persons that may request an agent to account are consistent with the premise that a principal with capacity should control to whom the details of financial transactions are disclosed. If a principal becomes incapacitated or dies, then the principal’s fiduciary or personal representative may succeed to that monitoring function. The inclusion of a governmental agency (such as Adult Protective Services) in the list of persons that may request an agent to account is patterned after state legislative trends and is a response to growing national concern about financial abuse of vulnerable persons. See 755 Ill. Comp. Stat. Ann. 45/2-7.5 (West Supp. 2006 & 2006 Ill. Legis. Serv. 1754); 20 Pa. Cons. Stat. Ann. § 5604(d) (West 2005); Vt. Stat. Ann. tit.14, § 3510(b) (2002 & 2006-3 Vt. Adv. Legis. Serv. 228). See generally Donna J. Rabiner, David Brown & Janet O’Keeffe, Financial Exploitation of Older Persons: Policy Issues and Recommendations for Addressing Them, 16 J. Elder Abuse & Neglect 65 (2004). As an additional protective counter-measure to the narrow categories of persons who may request an agent to account, the Act contains a broad standing provision for seeking judicial review of an agent’s conduct. See Section 116 and Comment.

North Carolina Comments

Subsection (a) of this section providing mandatory duties for an agent that has accepted appointment is somewhat consistent with prior North Carolina law. See SNML Corp. v. Bank of North Carolina, N.A., 41 N.C. App. 28, 37, 254 S.E.2d 274, 280 (1979), stating that an agent is a fiduciary with regard to matters within his authority and that the standard of care for an agent is to act “with utmost good faith, loyalty and honesty” for the principal when the agent is required to act.

Subsection (a) modifies that subsection of Section 114 of the Uniform Power of Attorney Act by adding the words “when exercising the power of attorney” to clarify that the mandatory duties provided in subsection (a) are applicable when an agent has not only accepted appointment but when exercising a power under the power of attorney.

Subsection (b), which provides a list of default duties of the agent and is new to North Carolina power of attorney law, modified that subsection of Section 114 of the Uniform Power of Attorney Act as follows:

(i) Language was added that an agent that has accepted appointment “has no affirmative duty to exercise the powers or continue to exercise the powers granted to the agent by the power of attorney, but if the agent exercises any of the granted powers, the agent shall, in the exercise of the powers” act in accordance with the default duties provided in subsection (b).

(ii) Subdivision (b)(7) was added to provide a default duty for an agent to account to the principal or a person designated by the principal, if any, in the power of attorney.

Subsections (c) and (d), which are new to North Carolina power of attorney law, modified these subsections of Section 114 of the Uniform Power of Attorney Act to provide that the provisions of these subsections apply “when exercising a power under the power of attorney”. Subsection (c) modified that subsection of the Uniform Power of Attorney Act by replacing the words “with care, competence and diligence” with “in good faith” and by adding that an act by the agent that is in good faith is not “voidable”.

Subsection (e) of Section 114 of the Uniform Power of Attorney Act was omitted. It provided generally that if an agent is selected by the principal because of special skills or expertise, or in reliance on the agent’s representation that the agent has special skills or expertise, such skills or expertise must be considered in determining whether the agent acted with care, competence and diligence under the circumstances. The drafters concluded that the duties of an agent in this regard should not be analogous to a trustee who has special skills or expertise as provided in G.S. 36C-8-806 .

Subsections (f) and (g) are new to North Carolina power of attorney law.

Subsection (h), which is also new to North Carolina power of attorney law, modified this provision of Section 114 of the Uniform Power of Attorney Act to delete from the category of persons that may request an agent to account “a conservator, another fiduciary acting for the principal, [and] a governmental agency having authority to protect the welfare of the principal”. The drafters also omitted the last sentence of this provision of the Uniform Power of Attorney Act providing that if requested to disclose receipts, disbursements or transactions the agent within 30 days shall comply with a request or provide a writing why additional time is needed and shall comply under the request within an additional 30 days. The drafters concluded it was unnecessary in light of the discovery procedures in judicial proceedings and may otherwise conflict or limit discovery or analogous procedures.

In the first sentence of the sixth paragraph in the Official Comment the words “in good faith and” should be substituted for the words “with care, competence, and diligence.” References to subsection (e) should be disregarded because it was omitted.

In the second sentence of the ninth paragraph in the Official Comment the words “guardian of the estate or general guardian for” should be substituted for the words “a fiduciary acting for the principal or a governmental agency with authority to protect the welfare of”.

The third sentence of the last paragraph of the Official Comment and its citations should be disregarded.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Effect of Amendments.

Session Laws 2018-142, s. 30(a), effective December 15, 2018, deleted subdivision (b)(7); and in subsection (h), substituted “principal or a person designated by the principal in the power of attorney” for “principal” preceding “a guardian of the estate.”

Official Comment

This section permits a principal to exonerate an agent from liability for breach of fiduciary duty, but prohibits exoneration for a breach committed dishonestly, with improper motive, or with reckless indifference to the purposes of the power of attorney or the best interest of the principal. The mandatory minimum standard of conduct required of an agent is equivalent to the good faith standard applicable to trustees. A trustee’s failure to adhere to that standard cannot be excused by language in the trust instrument. See Unif. Trust Code § 1008 cmt. (2003) (noting that “a trustee must always act in good faith with regard to the purposes of the trust and the interests of the beneficiaries”). See also Section 102(4) (defining good faith for purposes of the Act as “honesty in fact”). Section 115 provides, as an additional measure of protection for the principal, that an exoneration provision is not binding if it was inserted as the result of abuse of a confidential or fiduciary relationship with the principal. While as a matter of good practice an exoneration provision should be the exception rather than the rule, its inclusion in a power of attorney may be useful in meeting particular objectives of the principal. For example, if the principal is concerned that contentious family members will attack the agent’s conduct in order to gain control of the principal’s assets, an exoneration provision may deter such action or minimize the likelihood of success on the merits.

North Carolina Comment

This section, which is new to North Carolina power of attorney law, modified Section 115 of the Uniform Power of Attorney Act as follows:

(i) It changed the standard under which an exculpatory provision would not apply from “dishonesty, with an improper motive,” to “in bad faith”, the same standard used in G.S. 36C-10-1008 .

(ii) It omitted the provision which provided that an exculpatory provision would not apply if it “(2) was inserted as a result of an abuse of a confidential or fiduciary relationship with the principal”. Like the drafters of G.S. 36C-10-1008 , the drafters of this section were concerned that this provision would unnecessarily complicate the use of legitimate limitations of liability in powers of attorney upon which agents customarily rely.

References to the words “dishonestly, with improper motive” in the Official Comment should be understood to mean “in bad faith,” and reference to “Section 102(4)” should be understood to refer to G.S. 32C-1-102(5) . The sixth sentence of the Official Comment should be disregarded because subdivision (2) of Section 115 of the Uniform Power of Attorney Act was omitted from G.S. 32C-1-115 .

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

The primary purpose of this section is to protect vulnerable or incapacitated principals against financial abuse. Subsection (a) sets forth broad categories of persons who have standing to petition the court for construction of the power of attorney or review of the agent’s conduct, including in the list a “person that demonstrates sufficient interest in the principal’s welfare” (subsection (a)(8)). Allowing any person with sufficient interest to petition the court is the approach taken by the majority of states that have standing provisions. See Cal. Prob. Code § 4540 (West Supp. 2006); Colo. Rev. Stat. Ann. § 15-14-609 (West 2005); 755 Ill. Comp. Stat. Ann. 45/2-10 (West 1992); Ind. Code Ann. § 30-5-3-5 (West 1994); Kan. Stat. Ann.§ 58-662 (2005); Mo. Ann. Stat. § 404.727 (West 2001); N.H. Rev. Stat. Ann. § 506:7 (LexisNexis 1997 & Supp. 2005); Wash. Rev. Code Ann. § 11.94.100 (Supp. 2006); Wis. Stat. Ann. § 243.07(6r) (West 2001). But cf. 20 Pa. Cons. Stat. Ann. § 5604 (West 2005) (limiting standing to an agency acting pursuant to the Older Adults Protective Services Act); Vt. Stat. Ann. tit.14, § 3510(b) (2002 & 2006-3 Vt. Adv. Legis. Serv. 228) (limiting standing to the commissioner of disabilities, aging, and independent living).

In addition to providing a means for detecting and redressing financial abuse by agents, this section protects the self-determination rights of principals. Subsection (b) states that the court must dismiss a petition upon the principal’s motion unless the court finds that the principal lacks the capacity to revoke the agent’s authority or the power of attorney. Contrasted with the breadth of Section 116 is Section 114(h) which narrowly limits the persons who can request an agent to account for transactions conducted on the principal’s behalf. The rationale for narrowly restricting who may request an agent to account is the preservation of the principal’s financial privacy. See Section 114 Comment. Section 116 operates as a check-and-balance on the narrow scope of Section 114(h) and provides what, in many circumstances, may be the only means to detect and stop agent abuse of an incapacitated principal.

North Carolina Comment

This section, which only a portion of is a part of the Uniform Power of Attorney Act, is new to North Carolina in providing (i) in subsection (a) the proceedings in which the clerk of superior court’s jurisdiction is exclusive except for those proceedings in subdivision (4) of subsection (a), (ii) in subsection (b) for actions for which the clerk does not have jurisdiction, (iii) in subsection (d) for the venue of a proceeding under subsection (a) of this section, (iv) in subsection (e) for the right to file an action for declaratory relief, and (v) in subsection (g) for an appeal of an order of the clerk of superior court in a proceeding commenced under subsection (a).

Subsection (c) regarding the persons who may bring a proceeding under subsection (a), substantially modified the provisions of subsection (a) of Section 116 of the Uniform Power of Attorney Act by excluding several categories of persons that Section 116 authorized to petition the court.

Subsection (f) incorporates the provisions of subsection (b) of Section 116 of the Uniform Power of Attorney Act but modified it to change the references from “court” to “clerk of superior court” and to substitute the words “incapacitated within the meaning of G.S. 32C-1-102(6) a. for “lacks capacity to revoke the agent’s authority or the power of attorney”.

In the Official Comment references to “subsection (a)” should be understood to refer to subsection (c) of G.S. 32C-1-116 , and references to “subsection (b)” should be understood to refer to subsection (f) of G.S. 32C-1-116 . Also, in the second sentence of the first paragraph in the Official Comment the words, “including in the list a ‘person that demonstrates sufficient interest in the principal’s welfare’ (subsection (a)(8))” should be disregarded. Further, in the second sentence of the second paragraph the words “is incapacitated within the meaning of G.S. 32C-1-102(6) a.” should be substituted for the words “lacks the capacity to revoke the agent’s authority or the power of attorney.”

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Effect of Amendments.

Session Laws 2018-142, ss. 27(b), 28(b), effective December 15, 2018, in subdivision (a)(2), substituted “suspend” for “limit, suspend” preceding “or terminate”; in subsection (c), inserted “and shall be conducted in accordance with” preceding “estate proceedings”; in subsection (e), substituted “affects” for “shall affect” preceding “the right of a person”; in subsection (f), substituted “G.S. 32C-1-102(6).” For “G.S. 32C-1-102(5).” at the end; and made minor stylistic changes.

Session Laws 2019-243, s. 25, effective November 6, 2019, in subdivision (a)(3), inserted “and expenses” and added “and G.S. 32C-1-112(c)” at the end.

North Carolina Comment

This section replaces the provisions of Section 117 of the Uniform Power of Attorney Act, and has no counterpart in prior North Carolina power of attorney law.

Subsections (a) through (c) are similar to the remedies for breach of trust provided for under G.S. 36C-10-1001 with modifications for applicability to an agent for breach of fiduciary duty.

Subsections (d) and (e) of this Section 117 are similar to the damages for breach of trust provided for under G.S. 36C-10-1002(a) and G.S. 36C-10-1002(b), respectively with modifications for applicability to an agent who commits a breach of fiduciary duties under a power of attorney. Also, the terms “greater of” were omitted from subsection (d) and the “or” was replaced with “and” for subdivisions (d)(1) and (2).

Subsections (f) and (g) of this section are similar to the liability in the absence of breach provided under G.S. 36C-10-1003(a) and G.S. 36C-10-1003(b), respectively, with modifications for applicability to an agent under a power of attorney.

Subsection (h) of this section is similar to G.S. 36C-10-1004 with modifications for applicability to a claim for breach of fiduciary duty under a power of attorney.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

North Carolina Comment

This section providing a default procedure for specific methods for an agent’s resignation is new to North Carolina power of attorney law although provisions for resignation were permitted under former G.S. 32A-12(a).

This section modified Section 118 of the Uniform Power of Attorney Act as follows:

(i) It clarified that the notice of the resignation must be in writing.

(ii) It substituted references to “the guardian of the principal’s estate or guardian of the principal’s person or general guardian” for the words “conservator or guardian”.

(iii) It omitted subdivision (2) of Section 118 of the Uniform Power of Attorney Act providing that if notice could not be given to others described in this section, it could be given to the principal’s caretaker, another person reasonably believed to have sufficient interest in the principal’s welfare, or a governmental agency having authority to protect the welfare of the principal.

The drafters are of the opinion that the following portions of the Official Comment to this section are relevant:

Section 118 provides a default procedure for an agent’s resignation. An agent who no longer wishes to serve should formally resign in order to establish a clear demarcation of the end of the agent’s authority and to minimize gaps in fiduciary responsibility before a successor accepts the office. If the principal still has capacity when the agent wishes to resign, this section requires only that the agent give notice to the principal. If, however, the principal is incapacitated, the agent must, in addition to giving notice to the principal, give notice as set forth in paragraphs (1) or (2).

However, in the last sentence of this paragraph of the Official Comment the words “, in addition to giving notice to the principal,” should be disregarded and reference to “paragraphs (1) and (2)” should be understood to refer to subdivision (2) of G.S. 32C-1-118 .

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

This section protects persons who in good faith accept an acknowledged power of attorney. Section 119 does not apply to unacknowledged powers of attorney. See Section 105 (providing that the signature on a power of attorney is presumed genuine if acknowledged). Subsection (a) states that for purposes of this section and Section 120 “acknowledged” means “purportedly” verified before an individual authorized to take acknowledgments. The purpose of this definition is to protect a person that in good faith accepts an acknowledged power of attorney without knowledge that it contains a forged signature or a latent defect in the acknowledgment. See, e.g., Cal. Prob. Code § 4303(a)(2) (West Supp. 2006); 755 Ill. Comp. Stat. Ann. 45/2-8 (Supp. 2006); Ind. Code Ann. § 30-5-8-2 (West 1994); N.C. Gen. Stat. § 32A-40 (2005). The Act places the risk that a power of attorney is invalid upon the principal rather than the person that accepts the power of attorney. This approach promotes acceptance of powers of attorney, which is essential to their effectiveness as an alternative to guardianship. The national survey conducted by the Joint Editorial Board for Uniform Trust and Estate Acts ( see Prefatory Note) found that a majority of respondents had difficulty obtaining acceptance of powers of attorney. Sixty-three percent reported occasional difficulty and seventeen percent reported frequent difficulty. Linda S. Whitton, National Durable Power of Attorney Survey Results and Analysis, National Conference of Commissioners on Uniform State Laws 12-13 (2002), available at http://www.law.upenn.edu/bll/ulc/dpoaa/surveyoct2002.htm.

Section 119 permits a person to rely in good faith on the validity of the power of attorney, the validity of the agent’s authority, and the propriety of the agent’s exercise of authority, unless the person has actual knowledge to the contrary (subsection (c)). Although a person is not required to investigate whether a power of attorney is valid or the agent’s exercise of authority proper, subsection (d) permits a person to request an agent’s certification of any factual matter ( see Section 302 for a sample certification form) and an opinion of counsel as to any matter of law. If the power of attorney contains, in whole or part, language other than English, an English translation may also be requested. Further protection is provided in subsection (f) for persons that conduct activities through employees. Subsection (f) states that for purposes of Sections 119 and 120, a person is without actual knowledge of a fact if the employee conducting the transaction is without actual knowledge of the fact.

North Carolina Comment

This section is generally consistent with the provisions regarding reliance of persons on the power of attorney of former G.S. 32A-40 , several provisions of which were brought forward and added to this section.

Subsection (c) modified that subsection of Section 119 of the Uniform Trust Code by omitting the word “acknowledged” before the words “power of attorney” and by bringing forward in clause (ii) the provisions in former G.S. 32A-40(a) regarding protection of persons dealing in good faith with an agent from responsibility for any breach of fiduciary duty by that agent.

Subsection (d) modified that subsection of the Uniform Power of Attorney Act by also omitting the provisions of subdivision (1) providing that a person may request “an agent’s certification under penalty of perjury of any factual matter concerning the principal, agent, or power of attorney” and bringing forward in their place the substance of the provisions in former G.S. 32A-40(b).

Subdivisions (d)(2), (d)(3) and subsection (e) are new to North Carolina power of attorney law.

Subsection (f) is somewhat similar to the last sentence of former G.S. 32A-40(a).

Subdivision (g)(1) was added to bring forward the provisions of former G.S. 32A-40(c) regarding termination of a power of attorney by expiration of time or other event.

In the first sentence of the Official Comment the references to “acknowledged” power of attorney should be understood to mean an acknowledged or unacknowledged power of attorney. In addition, the second sentence should be disregarded because G.S. 32C-1-119 applies to an acknowledged and an unacknowledged power of attorney.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

CASE NOTES

Good Faith. —

In a case involving damages caused by the unauthorized cutting of timber, the broker that procured a buyer for the timber growing on the property was not liable to the grandchildren, as remaindermen, as there was no evidence of actionable negligence or bad faith on the part of the broker for relying on a power of attorney because the agent assured the broker of his authority to sell all of the timber on the property; the broker spoke to the attorney of the surviving daughter who held a life estate in the property and her agent to confirm the agent’s authority to sell the timber; and the broker checked the tax card to ensure that the surviving daughter was the record owner of the property. Jackson v. Don Johnson Forestry, Inc., 265 N.C. App. 20, 830 S.E.2d 659, 2019 N.C. App. LEXIS 373 (2019).

Official Comment

Comment to Alternative A

As a complement to Section 119, Section 120 enumerates the bases for legitimate refusals of a power of attorney as well as sanctions for refusals that violate the Act. Like Section 119, Section 120 does not apply to unacknowledged powers of attorney. Enacting jurisdictions are provided a choice between alternative Sections 120. Alternatives A and B are identical except that Alternative B applies only to acknowledged statutory form powers of attorney while Alternative A applies to all acknowledged powers of attorney.

Subsection (b) of Alternative A provides the bases upon which an acknowledged power of attorney may be refused without liability. The last paragraph of subsection (b) permits refusal of an otherwise valid acknowledged power of attorney that does not meet any of the other bases for refusal if the person in good faith believes that the principal is subject to abuse by the agent or someone acting in concert with the agent (paragraph (6)). A refusal under this paragraph is protected if the person makes, or knows another person has made, a report to the governmental agency authorized to protect the welfare of the principal. Pennsylvania has a similar provision. See 20 Pa. Cons. Stat. Ann. § 5608(a) (West 2005).

Unless a basis exists in subsection (b) for refusing an acknowledged power of attorney, subsection (a) requires that, within seven business days after the power of attorney is presented, a person must either accept the power of attorney or request a certification, a translation, or an opinion of counsel pursuant to Section 119. If a request under Section 119 is made, the person must decide to accept or reject the power of attorney no later than five business days after receipt of the requested document (subsection (a)(2)). Provided no basis exists for refusing the power of attorney, subsection (a)(3) prohibits a person from requesting an additional or different form of power of attorney for authority granted in the power of attorney presented.

Subsection (c) of Alternative A provides that a person that refuses an acknowledged power of attorney in violation of Section 120 is subject to a court order mandating acceptance and to reasonable attorney’s fees and costs incurred in the action to confirm the validity of the power of attorney or to mandate acceptance. Statutory liability for unreasonable refusal of a power of attorney is based on a growing state legislative trend. See, e.g., Alaska Stat. § 13.26.353(c) (2004); Cal. Prob. Code § 4306(a) (West Supp. 2006); Fla. Stat. Ann. § 709.08(11) (West 2000 & Supp. 2006); 755 Ill. Comp. Stat. Ann. 45/2-8 (West 1992); Ind. Code Ann. § 30-5-9-9 (West Supp. 2005); Minn. Stat. Ann. § 523.20 (West 2006); N.Y. Gen. Oblig. Law § 5-1504 (McKinney 2001); N.C. Gen. Stat. § 32A-41 (2005); 20 Pa. Cons. Stat. Ann. § 5608 (West 2005); S.C. Code Ann. § 62-5-501(F)(1) (Supp. 2005).

Comment to Alternative B

As a complement to Section 119, Section 120 enumerates the bases for legitimate refusals of a power of attorney as well as sanctions for refusals that violate the Act. Like Section 119, Section 120 does not apply to unacknowledged powers of attorney. Enacting jurisdictions are provided a choice between alternative Sections 120. Alternatives A and B are identical except that Alternative B applies only to acknowledged statutory form powers of attorney while Alternative A applies to all acknowledged powers of attorney.

Subsection (a) of Alternative B defines “statutory form power of attorney” as a power of attorney substantially in the form provided in Section 301 or one that meets the requirements for a military power of attorney.

Subsection (c) of Alternative B provides the bases upon which an acknowledged statutory form power of attorney may be refused without liability. The last paragraph of subsection (c) permits refusal of an otherwise valid acknowledged statutory form power of attorney that does not meet any of the other bases for refusal if the person in good faith believes that the principal is subject to abuse by the agent or someone acting in concert with the agent (paragraph (6)). A refusal under this paragraph is protected if the person makes, or knows another person has made, a report to the governmental agency authorized to protect the welfare of the principal. Pennsylvania has a similar provision. See 20 Pa. Cons. Stat. Ann. § 5608(a) (West 2005).

Unless a basis exists in subsection (c) for refusing an acknowledged statutory form power of attorney, subsection (b) requires that, within seven business days after the power of attorney is presented, a person must either accept the power of attorney or request a certification, a translation, or an opinion of counsel pursuant to Section 119. If a request under Section 119 is made, the person must decide to accept or reject the power of attorney no later than five business days after receipt of the requested document (subsection (b)(2)). Provided no basis exists for refusing the power of attorney, subsection (b)(3) prohibits a person from requesting an additional or different form of power of attorney for authority granted in the power of attorney presented.

Subsection (d) of Alternative B provides that a person that refuses an acknowledged statutory form power of attorney in violation of Section 120 is subject to a court order mandating acceptance and to reasonable attorney’s fees and costs incurred in the action to confirm the validity of the power of attorney or to mandate acceptance. Statutory liability for unreasonable refusal of a power of attorney is based on a growing state legislative trend. See, e.g., Alaska Stat. § 13.26.353(c) (2004); Cal. Prob. Code § 4306(a) (West Supp. 2006); Fla. Stat. Ann. § 709.08(11) (West 2000 & Supp. 2006); 755 Ill. Comp. Stat. Ann. 45/2-8 (West 1992); Ind. Code Ann. § 30-5-9-9 (West Supp. 2005); Minn. Stat. Ann. § 523.20 (West 2006); N.Y. Gen. Oblig. Law § 5-1504 (McKinney 2001); N.C. Gen. Stat. § 32A-41 (2005); 20 Pa. Cons. Stat. Ann. § 5608 (West 2005); S.C. Code Ann. § 62-5-501(F)(1) (Supp. 2005).

North Carolina Comment

This section, as modified as provided below, is somewhat consistent with the provisions regarding the protection of third parties in former G.S. 32A-42, several provisions of which were brought forward and added to this section.

Subsection (a) was added to make clear that a person is not required to accept an unacknowledged power of attorney.

Subsection (b) was modified in the following respects.

(i) Subdivisions (1) and (2) were modified to provide that a person may refuse to accept an acknowledged power of attorney pursuant to subsections (c) and (d).

(ii) In subdivision (3) the words “if the power of attorney presented reasonably appears to authorize the agent to conduct the business the agent desires to conduct” were added at the end in place of the words “for authority granted in the power of attorney presented” which were omitted.

Subsection (c) was modified as follows:

(i) Subdivision (5) was added to bring forward the substantive provisions of former G.S. 32A-42(e) regarding the right of a person to refuse to accept a power of attorney if that person does not receive requested items within a reasonable time.

(ii) Subdivision (7) was added to bring forward the substantive provisions of former G.S. 32A-42(d) regarding the right of a person to refuse to accept a power of attorney if such person has reasonable cause to question the authenticity or validity or authority granted by the document.

(iii) Subdivision (8) was added to bring forward the substantive provisions of former G.S. 32A-42(b)(1) regarding the right of a person to refuse to accept a power of attorney if the agent or principal has previously breached an agreement with the person.

Subsection (d) was added to bring forward the substantive provisions of former G.S. 32A-42(a) and (b)(2) and (3) regarding the right of persons to refuse to conduct activities with the agents in certain situations.

Subsection (e) modified the provisions of the Uniform Power of Attorney Act to add subdivision (3) regarding other available remedies which was brought forward from G.S. 32A-41(3) and, as modified, subsection (e) is similar to former G.S. 32A-41(a) regarding the penalties for unreasonable refusal to recognize a power of attorney.

Subsection (f) was added to bring forth the substantive provisions of former G.S. 32A-42(f) regarding the right to initiate special proceedings regarding acceptance of a power of attorney.

Subsection (g) was added to bring forward the provisions of former G.S. 32A-42(h) regarding the rights of banks and other depository institutions to terminate the deposit accounts in accordance with applicable law.

Subsection (h) was added to bring forward the substantive provisions of former G.S. 32A-42(c) that a person shall not be deemed to have unreasonably refused to accept a power of attorney solely on the basis of the failure to accept the power of attorney within seven business days. Subdivision (b)(1) of this section requires a person, when presented with an acknowledged power of attorney, to act within seven business days.

Subsection (i) was added to bring forward the substantive provisions of former G.S. 32A-42(e) that a person who promptly requests a certification is not deemed to have unreasonably refused to accept a power of attorney prior to receipt of the requested items.

In the second sentence in the first paragraph of the Official Comment the words “does apply to acknowledged or unacknowledged power of attorney”, should be substituted for “does not apply to unacknowledged power of attorney.”

References in the Official Comment

(i) to “subsection (a)” should be understood to refer to subsection (b) of G.S. 32C-1-120 ,

(ii) to “subsection (a)(2)” should be understood to refer to subdivision (b)(2) of G.S. 32C-1-120 , and

(iii) to “subsection (a)(3)” should be understood to refer to subdivision (b)(3) of G.S. 32C-1-120 .

In addition, references in the Official Comment

(i) to “subsection (b)” should be understood to refer to subsection (c) of G.S. 32C-1-120 ,

(ii) to “paragraph (6) of subsection (b)” should be understood to refer to subdivision (9) of subsection (c) of G.S. 32C-1-120 , and

(iii) to “subsection (c)” should be understood to refer to subsection (e) of G.S. 32C-1-120 .

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

The Act is supplemented by common law, including the common law of agency, where provisions of the Act do not displace relevant common law principles. The common law of agency is articulated in the Restatement of Agency and includes contemporary and evolving rules of decision developed by the courts in exercise of their power to adapt the law to new situations and changing conditions. The common law also includes the traditional and broad equitable jurisdiction of the court, which this Act in no way restricts.

The statutory text of the Uniform Power of Attorney Act (2006) is also supplemented by these comments, which, like the comments to any Uniform Act, may be relied on as a guide for interpretation. See Acierno v. Worthy Bros. Pipeline Corp., 656 A.2d 1085, 1090 (Del. 1995) (interpreting Uniform Commercial Code); Yale University v. Blumenthal, 621 A.2d 1304, 1307 (Conn. 1993) (interpreting Uniform Management of Institutional Funds Act); 2B Norman Singer, Southerland Statutory Construction § 52.5 (6th ed. 2000).

North Carolina Comment

This section is new to North Carolina power of attorney law.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

This section addresses concerns of representatives from the banking and insurance industries that there may be regulations which govern those entities that conflict with provisions of this Act. Although no specific conflicts were identified during the drafting process, Section 122 provides that in the event a law applicable to a financial institution or other entity is inconsistent with this Act, the other law will supersede this Act to the extent of the inconsistency. This concern about inconsistency with the requirements of other law is already substantially addressed in Section 120, which provides, in pertinent part, that a person is not required to accept a power of attorney if, “the person is not otherwise required to engage in a transaction with the principal in the same circumstances,” or “engaging in a transaction with the agent or the principal in the same circumstances would be inconsistent with federal law.”

North Carolina Comment

This section has no counterpart in prior North Carolina power of attorney law.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

The remedies under the Act are not intended to be exclusive with respect to causes of action that may accrue in relation to a power of attorney. The Act applies to many persons, individual and entity ( see Section 102(6) (defining “person” for purposes of the Act)), that may serve as agents or that may be asked to accept a power of attorney. Likewise, the Act applies to many subject areas ( see Article 2) over which principals may delegate authority to agents. Remedies under other laws which govern such persons and subject matters should be considered by aggrieved parties in addition to remedies available under this Act. See, e.g., Section 117 Comment.

North Carolina Comment

This section is new to North Carolina power of attorney law.

References to “Section 102(6)” in the Official Comment should be understood to refer to G.S. 32C-1-102(8) .

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

This section distinguishes between grants of specific authority that require express language in a power of attorney and grants of general authority. Section 201(a) enumerates the acts that require an express grant of specific authority and which may not be inferred from a grant of general authority. This approach follows a growing trend among states to require express specific authority for such actions as making a gift, creating or revoking a trust, and using other non-probate estate planning devices such as survivorship interests and beneficiary designations. See, e.g., Cal. Prob. Code § 4264 (West Supp. 2006); Kan. Stat. Ann. § 58-654(f) (2005); Mo. Ann. Stat. § 404.710 (West 2001); Wash. Rev. Code Ann. § 11.94.050 (West Supp. 2006). See also Section 9 of the Revised Uniform Fiduciary Access to Digital Assets Act, which applies “[t]o the extent a power of attorney expressly grants an agent authority over the content of electronic communications sent or received by the principal . . . .” The rationale for requiring a grant of specific authority to perform the acts enumerated in subsection (a) is the risk those acts pose to the principal’s property and estate plan. Although risky, such authority may nevertheless be necessary to effectuate the principal’s property management and estate planning objectives. Ideally, these are matters about which the principal will seek advice before granting authority to an agent.

The Act does not contain statutory construction language for any of the acts enumerated in subsection (a) other than the making of gifts ( see Section 217). Because a gift of the principal’s property reduces the principal’s estate, the Act, like a number of state statutes, sets default per-donee limits on gift amounts. See, e.g., N.Y. Gen. Oblig. Law § 5-1502M (McKinney 2001); 20 Pa. Cons. Stat. Ann. § 5603(a)(2)(ii) (West 2005). However, as with any authority incorporated by reference in a power of attorney, the principal may enlarge or restrict the default parameters set by the Act.

With respect to other acts listed in Section 201(a), the Act contemplates that the principal 44 will specify any special instructions in the power of attorney to further define or limit the authority granted. For example, if a principal grants authority to create or change rights of survivorship (subsection (a)(3)) or beneficiary designations (subsection (a)(4)) the principal may choose to restrict that authority to specifically identified property interests, accounts, or contracts. Principals should carefully consider not only whether to authorize any of the acts listed in Section 201(a), but also whether to limit the scope of such actions.

Subsection (b) contains an additional safeguard for the principal. It establishes as a default rule that an agent who is not an ancestor, spouse, or descendant of the principal may not exercise authority to create in the agent or in an individual the agent is legally obligated to support, an interest in the principal’s property. For example, a non-relative agent with gift making authority could not make a gift to the agent or a dependant of the agent without the principal’s express authority in the power of attorney. In contrast, a spouse-agent with express gift-making authority could implement the principal’s expectation that annual family gifts be continued without additional authority in the power of attorney.

Notwithstanding a grant of authority to perform any of the enumerated acts in subsection (a), an agent is bound by the mandatory fiduciary duties set forth in Section 114(a) as well as the default duties that the principal has not modified. For a list of these default rules, see Section 301 Comment. If the principal’s expectations for the performance of authorized acts potentially conflict with those duties, then clarification of the principal’s expectations, modification of the default duties, or both, may be advisable. See Section 114 Comment.

Authority for acts and subject matters other than those listed in Section 201(a) may be granted either through incorporation by reference (see Section 202) or, if the principal wishes to grant comprehensive general authority, by a grant of authority to do all the acts that a principal could do. A broad grant of general authority is interpreted under the Act as including all of the subject matters and authority described in Sections 204 through 216 (see subsection (c)).

Historical Note. Section 201(a) and the accompanying Comment were revised in 2016 to conform them to the Revised Uniform Fiduciary Access to Digital Assets Act.

North Carolina Comment

Subsection (a) enumerating the acts that require an express grant of specific authority is consistent in some respects to North Carolina power of attorney law. An express grant of authority was required (i) to renounce an interest in property as provided by former G.S. 32A-14.2 and by G.S. 31B-1(9e), (ii) to exercise the powers of the principal as settlor of a revocable trust as provided by G.S. 36C-6-602 .1, and (iii) to exercise the powers of the settlor of an irrevocable trust to consent to its modification or termination as provided by G.S. 36C-4-411(a)(1). On the other hand, under former G.S. 32A-14.1 an express grant of power was not required to make gifts to individuals or charitable organizations in accordance with the principal’s personal history of making gifts.

Subsection (a) of Section 201 of the Uniform Power of Attorney Act was modified to delete from the list of acts requiring an express grant of authority the act to “create, amend, revoke or terminate an inter vivos trust” which is governed by G.S. 36C-6-602 .1 and G.S. 36C-4-411(a)(1) as noted above. Subdivision (a)(2) was added to include a reference to these statutes.

Subsection (b), which is not a part of Section 201 of the Uniform Power of Attorney Act, was added to bring forward similar provisions applicable to gifts in subsection (c) of Section 217 of the Uniform Power of Attorney Act to make these provisions applicable not only to gifts but to all the acts enumerated in subsection (a). The relevant factors described in subdivisions (1) through (6) that the agent must consider are substantially similar to those the clerk of superior court was required to consider in authorizing a gift by court order pursuant to former Article 2B of Chapter 32A.

Subsection (c), which incorporated subsection (b) of the Uniform Power of Attorney Act, modified this provision of the Uniform Power of Attorney Act to make the default limitations on the power of an agent to exercise authority to benefit the agent applicable to any agent and not only to an agent “that is not an ancestor, spouse or descendant of the principal” as provided in subsection (b) of the Uniform Power of Attorney Act. This provision, which applies to all the acts described in subsection (a), is broader than former North Carolina statutory power of attorney law which provided such default limitation of the exercise of authority to benefit the agent only with respect to (i) gifts in former G.S. 32A-2(14b) and (ii) renunciations of an interest in property in former G.S. 32A-14.2 and in G.S. 31B-1(a)(9e).

Subsections (d), (e), (f), (g) and (h) are new to North Carolina power of attorney law.

In the second sentence of the fourth paragraph in the Official Comment, the words “who is not an ancestor, spouse or descendant of the principal,” and the last two sentences of the fourth paragraph should be disregarded. Also, references in the Official Comment to “subsection (a)(3)” and “subsection (a)(4)” should be understood to refer to sub-subdivisions (a)(1)b. and (a)(1)c. of G.S. 32C-2-201 , and “subsection (b)” and “subsection (c)” should be understood to refer to subsections (c) and (d) of G.S. 32C-2-201 , respectively.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Effect of Amendments.

Session Laws 2018-142, s. 31(a), effective December 15, 2018, in subsection (a), deleted “not” preceding “otherwise prohibited”; and in subsection (d), substituted “32C-2-216” for “32C-2-216 and G.S. 32C-2-220” at the end.

Official Comment

This section provides two methods for incorporating into a power of attorney the Act’s statutory construction for authority over various subject matters. A reference in a power of attorney to the descriptive term for a subject in Sections 204 through 217, or to the section number, incorporates the entire statutory section as if it were set out in full in the power of attorney. Subsection (c) provides that a principal may modify any authority incorporated by reference. The optional statutory form power of attorney provided in Section 301 uses the descriptive terms in Sections 204 through 217 to incorporate statutory construction for authority granted on the form and provides a “Special Instructions” section where the principal may modify any authority incorporated by reference.

North Carolina Comments

This section is somewhat similar to former G.S. 32A-1 which also permitted the principal to authorize the agent to do the matters defined in former G.S. 32A-2 by initialing the subject matter in G.S. 32A 1. The powers defined in the former G.S. 32A-2 could also be incorporated by reference in a nonstatutory power of attorney. See In re Doerfer, 2006 WL 3253482 (Bankr. M.D.N.C. Nov. 1, 2006).

G.S. 32C-4-403(d) , which was not a part of the Uniform Power of Attorney Act, provides that notwithstanding the provisions of the North Carolina Uniform Power of Attorney Act, the powers conferred by former G.S. 32A-2 shall apply to a Statutory Short Form Power of Attorney created in accordance with the former G.S. 32A-1 prior to January 1, 2018. The intent of this subsection was to clarify that powers so conferred by former G.S. 32A-2 were not to be construed as being the authorities described in G.S. 32C-2-204 through G.S. 32C-2-217 .

References to the “Special Instructions” in the Official Comment section of the optional statutory form provided in G.S. 32C-3-301 should be understood to refer to “Additional Provisions and Exclusions.”

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Effect of Amendments.

Session Laws 2018-142, s. 31(b), effective December 15, 2018, deleted “and G.S. 32C-2-220” following “G.S. 32C-2-217” throughout.

Official Comment

This section is based on Section 3 of the Uniform Statutory Form Power of Attorney Act (1988). It describes incidental types of authority that accompany all authority granted to an agent under each of Sections 204 through 217, unless this incidental authority is modified in the power of attorney. The actions authorized in Section 203 are of the type often necessary for the exercise or implementation of authority over the subjects described in Sections 204 through 217. See Unif. Statutory Form Power of Atty. Act prefatory note (1988). Paragraph (10), which states that an agent is authorized to “do any lawful act with respect to the subject and all property related to the subject,” emphasizes that a grant of general authority is intended to be comprehensive unless otherwise limited by the Act or the power of attorney. Paragraphs (8) and (9) were added to the section to clarify that this comprehensive authority includes authorization to communicate with government employees on behalf of the principal, to access communications intended for the principal, and to communicate on behalf of the principal using all modern means of communication.

North Carolina Comment

This section has no counterpart in prior North Carolina power of attorney law.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Effect of Amendments.

Session Laws 2018-142, s. 31(c), effective December 15, 2018, deleted “and G.S. 32C-2-220” following “G.S. 32C-2-217.”

North Carolina Comment

This section is somewhat similar to, but more comprehensive than, the powers relating to real property defined in former G.S. 32A-2(1) that could be incorporated by reference in the Statutory Short Form Power of Attorney pursuant to former G.S. 32A-1 .

This section modified Section 204 of the Uniform Power of Attorney Act as follows:

(i) Subdivision (3) extends the power to pledge or “encumber” an interest in real property or a right incident to real property as security “for the principal or any entity in which the principal has an ownership interest” and adds with respect to the payment of a debt the following: “(iii) a debt of any entity in which the principal has an ownership interest or (iv) a debt guaranteed by any entity in which the principal has an ownership interest.”

(ii) In subdivision (5) the words “or to be acquired by the principal” were added after the words “to be owned by the principal.” In addition subdivision (e), which is not a part of the Uniform Power of Attorney Act, was added to provide specific authority to obtain title insurance.

(iii) Subdivision (10), which is not a part of the Uniform Power of Attorney Act, was added to grant the agent authority to waive, release or subordinate the principal’s inchoate right pursuant to G.S. 29-30 to claim an elective life estate, regardless of whether the waiver of release or subordination benefits the agent or a person to whom the agent owes an obligation of support.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former G.S. 32A-2.

Gifts of Real Property Generally. —

The legislature did not intend to include the power to give a gift of real property under this statute. Whitford v. Gaskill, 119 N.C. App. 790, 460 S.E.2d 346, 1995 N.C. App. LEXIS 685 (1995), rev'd, 345 N.C. 475 , 480 S.E.2d 690, 1997 N.C. LEXIS 20 (1997).

The power to give a gift of real property must be expressly conferred; general language of the power to transfer, along with the statutory form, will not suffice. Whitford v. Gaskill, 119 N.C. App. 790, 460 S.E.2d 346, 1995 N.C. App. LEXIS 685 (1995), rev'd, 345 N.C. 475 , 480 S.E.2d 690, 1997 N.C. LEXIS 20 (1997).

Since the power to make a gift of the principal’s property is potentially hazardous or adverse to the principal’s interests, such power will not be lightly inferred from broad grants of power contained in a general power of attorney. Whitford v. Gaskill, 345 N.C. 475 , 480 S.E.2d 690, 1997 N.C. LEXIS 20 , modified, 345 N.C. 762 , 489 S.E.2d 177, 1997 N.C. LEXIS 284 (1997).

Power of attorney set forth in G.S. 32A-1 and the powers granted attorneys-in-fact by subsection (1), standing alone, do not authorize an attorney-in-fact to make gifts of the principal’s real property. Whitford v. Gaskill, 345 N.C. 475 , 480 S.E.2d 690, 1997 N.C. LEXIS 20 , modified, 345 N.C. 762 , 489 S.E.2d 177, 1997 N.C. LEXIS 284 (1997).

The basic premise behind the majority rule that a general power of attorney does not include authority to make gifts of property, is that an attorney-in-fact is presumed to act in the best interests of the principal. Whitford v. Gaskill, 345 N.C. 475 , 480 S.E.2d 690, 1997 N.C. LEXIS 20 , modified, 345 N.C. 762 , 489 S.E.2d 177, 1997 N.C. LEXIS 284 (1997).

Power to Make Gift of Real Property Conferred. —

Where power of attorney executed by decedent went beyond the short form and expressly provided that attorney-in-fact’s powers were to include the power to transfer real estate, the document did expressly confer upon the attorney-in-fact the power to make a gift of real property. Whitford v. Gaskill, 345 N.C. 475 , 480 S.E.2d 690, 1997 N.C. LEXIS 20 , modified, 345 N.C. 762 , 489 S.E.2d 177, 1997 N.C. LEXIS 284 (1997).

Real Property Transactions. —

Chapter 7 debtor was authorized to enter into a real estate line of credit on behalf of he and his wife, and the lender was a secured creditor with regard to the transaction, because the wife executed a power of attorney incorporating by reference the statutory definition of real property transactions found in G.S. 32A-2(1), which gave the debtor expansive authority to engage in real property transactions on behalf of his wife. In re Doerfer, 2006 Bankr. LEXIS 3085 (Bankr. M.D.N.C. Nov. 1, 2006).

Chapter 7 debtor was not authorized to enter into a real estate line of credit on behalf of he and his wife for property located in Carteret County, and the lender was not a secured creditor with regard to the transaction, because the power of attorney executed by the wife only authorized the debtor to act as his wife’s attorney-in-fact with respect to property within Orange County. In re Doerfer, 2006 Bankr. LEXIS 3085 (Bankr. M.D.N.C. Nov. 1, 2006).

North Carolina Comment

This section is similar to, but more comprehensive than, the powers concerning tangible personal property defined in former G.S. 32A-2(2) that could be incorporated in the Statutory Short Form Power of Attorney pursuant to former G.S. 32A-1 although the powers defined in former G.S. 32A-2 encompassed intangible as well as tangible personal property.

Subdivision (3) modified Section 205 of the Uniform Power of Attorney Act by extending the power to grant a security interest in a security “for the principal or any entity in which the principal has an ownership interest” and adds with respect to the payment of a debt the following: “(iii) a debt of any entity in which the principal has an ownership interest, or (iv) a debt guaranteed by any entity in which the principal has an ownership interest”.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

North Carolina Comment

This section is somewhat similar to the powers concerning stocks and bonds defined in former G.S. 32A-2(3) that could be incorporated in the Statutory Short Form Power of Attorney pursuant to former G.S. 32A-1 .

Subdivision (3) modified Section 206 of the Uniform Power of Attorney Act by extending the power to pledge stocks and bonds as security “for the principal or any entity in which the principal has an ownership interest” and adds concerning payment of a debt the following: “(ii) a debt guaranteed by the principal, (iii) a debt of any entity in which the principal has an ownership interest, or (iv) a debt guaranteed by any entity in which the principal has an ownership interest”.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

North Carolina Comment

This section is somewhat similar to the powers concerning commodities defined in former G.S. 32A-2(3) that could be incorporated in the Statutory Short Form Power of Attorney pursuant to former G.S. 32A-1 , although the powers defined in former G.S. 32A-2(3) did not specifically refer to options.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

North Carolina Comment

This section is somewhat similar to, but more comprehensive than, the powers concerning banking transactions defined in former G.S. 32A-2(4) that could be incorporated in the Statutory Short Form Power of Attorney pursuant to former G.S. 32A-1 .

This section modified Section 208 of the Uniform Power of Attorney Act as follows:

(i) In subdivision (3) the words “and continue, modify and terminate any such service” were added to the end of this subdivision to allow for not only contracting for services but for continuing, modifying and terminating such services.

(ii) Subdivisions (7a) and (7b), which are not part of the Uniform Power of Attorney Act, were added to grant general authority with respect to the matters described in those subdivisions.

(iii) Subdivision (12) was added to provide for establishing, modifying or terminating ABLE accounts.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

The substance of this section remains unchanged from Section 9 of the Uniform Statutory Form Power of Attorney Act (1988); however, the wording is updated to encompass all modern business and entity forms, including limited liability companies, limited liability partnerships, and entities that may be organized other than for a business purpose.

North Carolina Comment

This section is somewhat similar to, but more comprehensive than, the powers concerning business operating transactions defined in former G.S. 32A-2(6) that could be incorporated in the Statutory Short Form Power of Attorney pursuant to former G.S. 32A-1 .

This section modified Section 209 of the Uniform Power of Attorney Act in referring to “an entity or business” by omitting the word “business” and retaining the use of the term “entity” which is defined in G.S. 32C-1-102(4) .

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

This section contains a significant change from Section 10 of the Uniform Statutory Form Power of Attorney Act (1988). The default language in the Uniform Statutory Form Power of Attorney Act (1988) permitted an agent to designate the beneficiary of an insurance contract. See Unif. Statutory Form Power of Atty. Act § 10(4) (1988). However, under Section 210 of this Act, an agent does not have authority to “create or change a beneficiary designation” unless that authority is specifically granted to the agent pursuant to Section 201(a). The authority granted under Paragraph (2) of Section 210 is more limited, allowing an agent to only “procure new, different, and additional contracts of insurance and annuities for the principal and the principal’s spouse, children, and other dependents.” A principal who grants authority to an agent under Section 210 should therefore carefully consider whether a specific grant of authority to create or change beneficiary designations is also desirable.

North Carolina Comment

This section is somewhat similar to, but more comprehensive than, the powers concerning insurance defined in former G.S. 32A-2(7) that could be incorporated in the Statutory Short Form Power of Attorney pursuant to former G.S. 32A-1 .

However, this section, which does not grant an agent the authority to change a beneficiary designation, except as provided in subdivision (14), differs from former G.S. 32A-2(7) which authorized the designation of the beneficiary of insurance provided that the agent could not be a beneficiary unless the agent was a spouse, child, grandchild, parent, brother or sister of the principal.

This section modified Section 210 of the Uniform Power of Attorney Act by adding subdivision (14) granting an agent authority to “change the beneficiary to a state or other governmental entity to qualify the principal for medical assistance or other benefits notwithstanding G.S. 32C-2-201(a)(1)c. requiring an express grant of authority to change a beneficiary”.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

North Carolina Comment

This section is somewhat similar to, but more comprehensive than, the powers concerning estates defined in former G.S. 32A-2(8) that could be incorporated by reference in the Statutory Short Form Power of Attorney pursuant to former G.S. 32A-1 although the powers described in G.S. 32A-2(8) encompassed only estates and not trusts and other beneficial interests.

This section modified Section 211 of the Uniform Power of Attorney Act by omitting subdivision (b)(8) granting the general authority to an agent to “reject, renounce, disclaim, release or consent to a reduction in or modification of a share in or payment from an estate, trust or other beneficial interest.” The drafters concluded that this subdivision could be erroneously interpreted as constituting the express grant of authority to “renounce or disclaim property, including a power of appointment” required by G.S. 32C-2-201(a)(1)g.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

North Carolina Comment

This section does not have a counterpart in former Chapter 32A which did not provide for incorporation by reference of powers concerning claims and litigation in the Statutory Short Form Power of Attorney pursuant to former G.S. 32A-1 .

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

This section, based on Section 13 of the Uniform Statutory Form Power of Attorney Act (1988), contains three important changes. The first is clarification in subsection (a)(1) of who qualifies to benefit from payments for personal and family maintenance. Subsection (a)(1) states that the individuals who may benefit include not only the principal’s children and other individuals legally entitled to be supported by the principal, but also “individuals whom the principal has customarily supported or indicated the intent to support,” “whether living when the power of attorney is executed or later born.” This definition is broad enough to include common recipients of family support such as parents and later-born grandchildren if such support is intended by the principal.

The second important addition to Section 213 is the inclusion of paragraph (6) in subsection (a) which qualifies the agent to act as the principal’s “personal representative” for purposes of the Health Insurance Portability and Accountability Act (HIPAA) so that the agent can communicate with health care providers in order to pay medical bills. See 45 C.F.R. § 164.502(g)(1)-(2) (2006) (providing that for purposes of disclosing an individual’s protected health information, “a covered entity must . . . treat a personal representative as the individual”). Section 213 does not, however, empower the agent to make health-care decisions for the principal. See Section 103 and comment (discussing exclusion from this Act of powers to make health-care decisions).

The third important addition to this section is subsection (b) which provides that authority under Section 213 is neither dependent upon, nor limited by, authority that an agent may or may not have with respect to making gifts. Although payments made for the benefit of persons under Section 213 may in fact be subject to gift tax treatment, subsection (b) clarifies that the authority for personal and family maintenance payments by an agent emanates from this section rather than Section 217. This is an important distinction because the Act requires a grant of specific authority under Section 201(a) to authorize gift making, and the default provisions of Section 217 limit the amounts of those gifts. The authority to make payments under Section 213 is not constrained by either of these provisions.

North Carolina Comment

This section is somewhat similar to, but more comprehensive than, the power concerning personal relationships and affairs defined in former G.S. 32A-2(9) that could be incorporated by reference in the Statutory Short Form Power of Attorney pursuant to former G.S. 32A-1 .

This section modified Section 213 of the Uniform Power of Attorney Act by adding the words “who are legally entitled to be supported by the principal” at the end of sub-subdivision (a)(1)a. so that only the principal’s children who are legally entitled to be supported by the principal are entitled to support under this subdivision.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

North Carolina Comment

This section is similar to, but more comprehensive than, the powers concerning social security and unemployment insurance defined in former G.S. 32A-2(10) that could be incorporated in the Statutory Short Form Power of Attorney pursuant to former G.S. 32A-1 .

This section modified Section 214 of the Uniform Power of Attorney Act by adding subdivision (b)(7), which is not a part of the Uniform Power of Attorney Act, to clarify that an agent has the general authority under this section to make the elections under the Survivor Benefit Plan as defined under Subchapter II of Title X of the United States Code.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

This section, based on Section 15 of the Uniform Statutory Form Power of Attorney Act (1988), has been substantially updated to reflect changes in the laws governing retirement plans. A significant departure from the Uniform Statutory Form Power of Attorney Act (1988) is the deletion of default authority in the agent to waive the right of the principal to be a beneficiary of a joint or survivor annuity ( see Unif. Statutory Form Power of Atty. Act § 15 (1988)). Under this Act, the authority to waive the principal’s right to be a beneficiary of a joint and survivor annuity must be given by a specific grant pursuant to Section 201(a).

North Carolina Comment

This section does not have a counterpart in former Chapter 32A with respect to the powers concerning retirement plans that could be incorporated by reference in the Statutory Short Form Power of Attorney pursuant to former G.S. 32A-1 .

G.S. 32C-2-201(a)(1)e. requires a principal to expressly grant the agent authority to waive the principal’s right to a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

North Carolina Comment

This section is somewhat similar to the powers concerning taxes defined in former G.S. 32A-2(12) that could be incorporated in the Statutory Short Form Power of Attorney pursuant to former G.S. 32A-1 .

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

This section provides default limitations on an agent’s authority to make a gift of the principal’s property. Authority to make a gift must be made by a specific grant in a power of attorney ( see Section 201(a)(2); see also Section 301). The mere granting to an agent of authority to make gifts does not, however, grant an agent unlimited authority. The agent’s authority is subject to this section unless enlarged or further limited by an express modification in the power of attorney. Without modification, the authority of an agent under this section is limited to gifts in an amount per donee not to exceed the annual dollar limits of the federal gift tax exclusion, or twice that amount if the principal and the principal’s spouse consent to make a split gift.

Subsection (a) of this section clarifies the fact that a gift includes not only outright gifts, but also gifts for the benefit of a person. Subsection (a) provides examples of gifts made for the benefit of a person, but these examples are not intended to be exclusive.

Subsection (c) emphasizes that exercise of authority to make a gift, as with exercise of all authority under a power of attorney, must be consistent with the principal’s objectives. If these objectives are not known, then gifts must be consistent with the principal’s best interest based on all relevant factors. Subsection (c) provides examples of factors relevant to the principal’s best interest, but these examples are illustrative rather than exclusive.

To the extent that a principal’s objectives with respect to the making of gifts may potentially conflict with an agent’s default duties under the Act, the principal should carefully consider stating those objectives in the power of attorney, or altering the default rules to accommodate the objectives, or both. See Section 114 Comment.

North Carolina Comment

This section is new to North Carolina power of attorney law in providing default limitations on an agent’s general authority to make a gift of the principal’s property based on the federal gift tax exclusion.

Subsection (a) modified that subsection of Section 217 of the Uniform Power of Attorney Act by adding to the matters included within a gift for the benefit of an individual “an ABLE account as defined under Section 529A of the Internal Revenue Code.”

Subsection (b) modified that subsection of Section 217 of the Uniform Power of Attorney Act by adding the authority of the agent to make gifts in an amount determined to be in accordance with the principal’s history of making gifts or joining in the making of gifts to an individual as provided in sub-subdivision (b)(1)a. or to a charitable organization as provided in sub-subdivision (b)(1)b. This addition is consistent with and brought forward from former G.S. 32A-2(14) which authorized such gifts if incorporated by reference and former G.S. 32A-14.1 which authorized such gifts if the agent had full power to handle the principal’s affairs or deal with the principal’s property.

Subsection (c) of Section 217 of the Uniform Power of Attorney Act, which provided that in making gifts the agent must make certain determinations, was omitted and its provisions brought forward to G.S. 32C-2-201(b) to make them applicable not only to the authority to make a gift but to all of the acts described in subsection G.S. 32C-2-201(a) requiring an express grant of authority to the agent.

References to “Section 201(a)(2)” in the Official Comment should be understood to refer to G.S. 32C-2-201 (a)(1)a., and “subsection (c) of Section 217” should be understood to refer to subsection (b) of G.S. 32C-2-201 .

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former G.S. 32A-14.1.

Illustrative Cases. —

Plaintiff/niece was entitled to summary judgment as a matter of law where the defendant/step-daughter, purporting to act under the power of attorney, deeded the decedent’s real property to herself and acted beyond the scope of her authority as his attorney in fact. Hutchins v. Dowell, 138 N.C. App. 673, 531 S.E.2d 900, 2000 N.C. App. LEXIS 781 (2000).

Trial court erred in granting partial summary judgment to plaintiffs pursuant to G.S. 1A-1 , N.C. R. Civ. P. 56(c), and in voiding defendants’ deeds to land; while it was true that a power of attorney granted to one of the defendants, a decedent’s niece, did not expressly grant her the right to make gifts of real property on behalf of the decedent, and the deeds would be void pursuant to G.S. 32A-14.1(b) if the conveyances were determined to be gifts, genuine issues of material fact existed on whether the conveyances were gifts or were transferred for consideration in the form of services to the decedent as recited in the deeds, as the trial court failed to consider those issues during the summary judgment hearing. Estate of Graham v. Morrison, 156 N.C. App. 154, 576 S.E.2d 355, 2003 N.C. App. LEXIS 81 (2003).

Attorney-in-fact did not breach the attorney-in-fact’s fiduciary duty to the attorney-in-fact’s principal by transferring funds from an account the principal held jointly with the principal’s husband to an account the principal held jointly with the attorney-in-fact and then transferring the funds to the attorney-in-fact because (1) the transfer to the account the principal held jointly with the attorney-in-fact carried out the principal’s wishes, (2) the transfer was not a gift, in violation of G.S. 32A-14.1, as the principal was alive and a joint tenant of the account into which the funds were transferred, and (3) the attorney-in-fact moved no funds from the account held jointly with the principal until after the principal died, when the attorney-in-fact owned the funds, pursuant to G.S. 53-146.1 [Repealed. See now G.S. 53C-6-6 ]. Albert v. Cowart, 219 N.C. App. 546, 727 S.E.2d 564, 2012 N.C. App. LEXIS 446 (2012).

North Carolina Comment

This section is broader than prior North Carolina power of attorney law in authorizing an agent to petition the clerk of superior court to make gifts of the principal’s property including a “gift that is in addition to, or otherwise differs from, gifts authorized by the power of attorney.” Prior law under former Article 2B of Chapter 32A provided for an agent to petition the clerk of superior court but only if the power or attorney did not expressly authorize gifts of the principal’s property.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

North Carolina Comment

This section, which is not a part of the Uniform Power of Attorney Act and is new to North Carolina power of attorney law, was added to allow an agent to petition the court for authority to do any act described in G.S. 32C 2 201(a), other than the authority to make gifts, that was not expressly granted to the agent in the power of attorney.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Official Comment

This section provides an optional form for creating a power of attorney. Any power of attorney that substantially complies with the form in Section 301 constitutes a statutory form power of attorney with the meaning and effect prescribed by the Act.

The form begins with an “Important Information” section that contains instructions for the principal and concludes with an “Important Information for Agent” section that contains general information for the agent about agent duties, events that terminate an agent’s authority, and agent liability. The form is constructed to guide the principal through designation of an agent, optional designation of one or more successor agents, and selection of subject areas and acts with respect to which the principal wishes to grant the agent authority. The form also contains an option for nomination of a conservator or guardian in the event later court-appointment of a fiduciary becomes necessary ( see Section 108 and Comment).

The grant of authority provisions in the form are divided into two sections: “Grant of General Authority,” which corresponds to the subject areas defined in Sections 204 through 216 of the Act, and “Grant of Specific Authority,” which corresponds to the actions for which Section 201(a) requires an express grant of authority in a power of attorney. Article 2 of the Act provides statutory construction with respect to all of the subject matters in the Grant of General Authority section and for the authority to make a gift listed in the Grant of Specific Authority section. The principal may modify any authority granted in the form by using the “Special Instructions” section of the form. For example, the scope of authority to make a gift is defined by the default provisions of Section 217 unless the principal expands or narrows that authority in the Special Instructions.

Cautionary language in the Grant of Specific Authority section alerts the principal to the increased risks associated with a grant of authority that could significantly reduce the principal’s property or alter the principal’s estate plan. The form is constructed to require that the principal initial each action over which the principal grants specific authority. The separate authorization of acts covered by Section 201(a) is intended to emphasize to the principal the significance of granting such specific authority and to minimize the risk that those actions might be authorized inadvertently.

Many principals may wish to grant an agent comprehensive authority over their day-to-day affairs. If this is the case, the principal may grant authority over all of the subject areas in the Grant of General Authority section by initialing “All Preceding Subjects.” Otherwise, the principal may authorize fewer than all of the subjects listed in the Grant of General Authority section by initialing only those particular subjects.

The statutory form is drafted to follow the Act’s default provisions, but it does not preclude alteration of the default rules or the exercise of other options available under the Act. For example, if not altered by the Special Instructions, the default rules embodied in a statutory form power of attorney include:

1. the power of attorney is durable (Section 104);
2. the power of attorney is effective when executed (Section 109);
3. a spouse-agent’s authority terminates upon the filing of an action for dissolution, annulment, or legal separation (Section 110(b)(3));
4. lapse of time does not affect an agent’s authority (Section 110(c));
5. a successor agent has the same authority as the original agent (Section 111(b));
6. a successor agent may not act until all predecessors have resigned, died, become incapacitated, are no longer qualified to serve, or have declined to serve (Section 111(b));
7. an agent is entitled to reimbursement of expenses reasonably incurred (Section 112);
8. an agent is entitled to reasonable compensation (Section 112);
9. the agent accepts appointment by exercising authority or performing duties, or by any assertion or conduct indicating acceptance (Section 113);
10. an agent has a duty to act loyally for the principal’s benefit; to act so as not to create a conflict of interest that impairs the ability to act impartially in the principal’s best interest; to act with care, competence, and diligence; to keep a record of receipts, disbursements, and transactions; to cooperate with the principal’s health-care agent; to attempt to preserve the principal’s estate plan to the extent the plan is known to the agent and if preservation is consistent with the principal’s best interest; and to account if ordered by a court or requested by the principal, a fiduciary acting for the principal, a governmental agency with authority to protect the principal, or the personal representative or successor in interest of the principal’s estate (Section 114);
11. an agent must give notice of resignation as specified in Section 118; and
12. an agent that is not the principal’s ancestor, spouse, or descendant may not exercise authority to create in the agent, or an individual to whom the agent owes support, an interest in the principal’s property (Section 201(b)).

Although the statutory form does not include express prompts for deviating from the foregoing default rules, any statutorily-sanctioned deviation from the statutory form may be indicated in, or on an addendum to, the Special Instructions.

North Carolina Comment

The approach of the statutory form power of attorney provided in this section and that of the statutory form power of attorney provided in former G.S. 32A-1 is generally consistent in permitting the principal to initial subjects granting authority to the agent. The subjects are defined with respect to the statutory power of attorney provided in this section in G.S. 32C-2-204 through G.S. 32C-2-217 and with respect to the statutory form power of attorney provided in former G.S. 32A-1 in G.S. 32A-2.

The statutory form power of attorney in this section differs from the one provided in former G.S. 32A-1 in that it allows the principal to initial several matters with respect to specific grants of authority which were not included in former G.S. 32A-1 . Former G.S. 32A-1 provided only for specific authority to make gifts defined in G.S. 32A-2(14) and (15), change of a beneficiary designation on a life insurance contract defined in G.S. 32A-2(7), and to renounce an interest in property defined in G.S. 32A-2(16) and (17). In addition, the statutory form power of attorney provides for additional matters, including an optional section for additional provisions and exclusions to be filled in by the principal, the effective date, nomination of guardian and other matters.

The statutory form power of attorney provided in Section 301 of the Uniform Power of Attorney Act was modified as follows:

(i) The provisions for filling in the agent address and telephone number were omitted.

(ii) An optional provision was added that the principal could initial giving the agent power to appoint another to act as agent and revoke the appointment if no agent had been named by the principal that was able to act.

(iii) In the section providing choices with respect to grants of specific authority the choice to “create, amend, revoke, terminate an inter vivos trust” was omitted because these matters are governed by the provisions with respect to a revocable trust in G.S. 36C-6-602 .1 and with respect to the modification or termination of an irrevocable trust in G.S. 36C-4-411 .

(iv) It omitted the section entitled “Limitations on the Agent’s Authority” providing that an agent that is not the principal’s ancestor, spouse, or descendant may not use the principal’s property to benefit the agent unless the authority is included in the section entitled “Special Instructions.”

(v) It modified the section regarding the nomination of a guardian to provide an optional section to nominate an agent as guardian omitting the provisions in the statutory form power of attorney in Section 301 of the Uniform Power of Attorney Act for the appointment of any persons as a guardian.

(vi) It added a section providing that the meaning and effect of the power of attorney is to be determined by the law of the State of North Carolina.

References in the Official Comment to the “Special Instructions” section of the form should be understood to refer to “Additional Provisions and Exclusions.”

The words in the default rules listed in the sixth paragraph of the Official Comment should be understood as follows:

(i) In clause (3) the words “when the court enters a decree of divorce between the principal and the agent” should be substituted for “upon the filing of an action for dissolution, annulment, or legal separation”,

(ii) In clause (10) the words, “to the principal or a designated agent by the principal in the power of attorney or if ordered by the court or requested by the principal, guardian of the estate or general guardian for the principal” should be substituted for “if ordered by a court or requested by the principal, a fiduciary acting for the principal, a governmental agency with authority to protect the principal”, and

(iii) In clause (12) the words “that is not the principal’s ancestor, spouse or descendant” should be disregarded.

Reference to “Section 201(b)” in the Official Comment should be understood to refer to G.S. 32C-2-201(c).

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Effect of Amendments.

Session Laws 2018-142, s. 30(b), effective December 15, 2018, delete subdivision (7) and made related stylistic changes.

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former G.S. 32A-1 .

Power to Make Gifts of Property Generally. —

Since the power to make a gift of the principal’s property is potentially hazardous or adverse to the principal’s interests, such power will not be lightly inferred from broad grants of power contained in a general power of attorney. Whitford v. Gaskill, 345 N.C. 475 , 480 S.E.2d 690, 1997 N.C. LEXIS 20 , modified, 345 N.C. 762 , 489 S.E.2d 177, 1997 N.C. LEXIS 284 (1997).

Power of attorney set forth in this section and the powers granted attorneys-in-fact by G.S. 32A-2(1), standing alone, do not authorize an attorney-in-fact to make gifts of the principal’s real property. Whitford v. Gaskill, 345 N.C. 475 , 480 S.E.2d 690, 1997 N.C. LEXIS 20 , modified, 345 N.C. 762 , 489 S.E.2d 177, 1997 N.C. LEXIS 284 (1997).

The basic premise behind the majority rule that a general power of attorney does not include authority to make gifts of property, is that an attorney-in-fact is presumed to act in the best interests of the principal. Whitford v. Gaskill, 345 N.C. 475 , 480 S.E.2d 690, 1997 N.C. LEXIS 20 , modified, 345 N.C. 762 , 489 S.E.2d 177, 1997 N.C. LEXIS 284 (1997).

Power to Make Gift of Real Property Conferred. —

Where power of attorney executed by decedent went beyond the short form and expressly provided that attorney-in-fact’s powers were to include the power to transfer real estate, the document did expressly confer upon the attorney-in-fact the power to make a gift of real property. Whitford v. Gaskill, 345 N.C. 475 , 480 S.E.2d 690, 1997 N.C. LEXIS 20 , modified, 345 N.C. 762 , 489 S.E.2d 177, 1997 N.C. LEXIS 284 (1997).

Use of Nonstatutory Form. —

Wife properly executed a power of attorney incorporating by reference the statutory definition of real property transactions found in G.S. 32A-2(1) because, although the parties did not use the statutory short form provided in G.S. 32A-1 , they could use a different form and incorporate by reference G.S. 32A-2 pursuant to G.S. 32A-3. In re Doerfer, 2006 Bankr. LEXIS 3085 (Bankr. M.D.N.C. Nov. 1, 2006).

Nonstatutory power of attorney that incorporated by reference the statutory definition of real property transactions found in G.S. 32A-2(1) was valid even though it did not contain the warning language required by G.S.32A-1 because, by incorporating the statutory definition, the parties did not automatically bind themselves to use the statutory power of attorney. In re Doerfer, 2006 Bankr. LEXIS 3085 (Bankr. M.D.N.C. Nov. 1, 2006).

OPINIONS OF ATTORNEY GENERAL

EDITOR’S NOTE.— The opinions cited below were decided under former G.S. 32A-1 .

Official Comment

This section provides an optional form that may be used by an agent to certify facts concerning a power of attorney. Although the form contains statements of fact about which persons commonly request certification, other factual statements may be added to the form for the purpose of providing an agent certification pursuant to Section 119.

North Carolina Comment

This section modified Section 302 of the Uniform Power of Attorney Act by omitting the provisions of Section 302 regarding the agent’s certification and bringing forward in their place the substance of former G.S. 32A 40(d) providing a form for the affidavit of the agent.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

CASE NOTES

Editor’s Note. —

The cases cited below were decided under former G.S. 32A-40 .

Applicability. —

Summary judgment for plaintiff was error in a suit on notes signed pursuant to a power of attorney executed by defendant because a restriction regarding defendant’s incompetence was a condition precedent to the attorney in fact having power to act on her behalf, and the facts failed to show that defendant was incompetent; G.S. 32A-40(a) did not apply if plaintiff had actual knowledge that the power was invalid or the attorney-in-fact acts beyond the apparent power or authority of that named attorney-in-fact as granted in that writing. While plaintiff may not have had actual knowledge that defendant was competent and therefore the power was invalid, defendant had constructive notice of the terms of the power of attorney and record notice of the terms since the power of attorney was filed in the public records. Suntrust Bank v. C & D Custom Homes, LLC, 223 N.C. App. 347, 734 S.E.2d 588, 2012 N.C. App. LEXIS 1259 (2012).

North Carolina Comment

This section, which is not a part of the Uniform Power of Attorney Act, was added to provide an optional limited power of attorney form to facilitate real property transactions.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Effect of Amendments.

Session Laws 2018-142, s. 32, effective December 15, 2018, added “My commission expires _______________ ” at the end of the form.

North Carolina Comment

This section modified Section 401 of the Uniform Power of Attorney Act by replacing the word “must” with “may” so that in applying and construing this Chapter, consideration may be given to the need to promote uniformity of the law with respect to its subject matter among the states that enacted it.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

North Carolina Comment

This section modified Section 402 of the Uniform Power of Attorney Act by omitting its provisions and bringing forward in their place the provisions of G.S. 36C-11-1102 in an effort to create consistency in North Carolina law with respect to the relation to Electronic Signatures in Global and National Commerce Act.

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

North Carolina Comment

Subsection (a) modified that subsection of Section 403 of the Uniform Power of Attorney Act as follows:

(i) In subdivision (a)(1) language was added that the Chapter applies to a power of attorney created on or before the effective date of this Chapter “unless there is a clear indication or contrary intent in the terms of the power of attorney or unless application of a particular provision of this Chapter would substantially impair rights of a party”.

(ii) Subdivision (a)(4) providing that “an act done before the effective date of the [act] is not affected by the [act]” was omitted.

(iii) A new subdivision (a)(4) was added regarding the rules of a construction or presumption that is also based on similar language in G.S. 36C-11-1106(b) of the North Carolina Uniform Trust Code and G.S. 31D-6-603(a)(4) of the North Carolina Uniform Powers of Appointment Act.

Subsection (b) was also added based on G.S. 31D-6-603(b) of the North Carolina Uniform Powers of Appointment Act.

Subsection (c) was added concerning references to prior statutes and powers of attorney.

Subsection (d) was also added to provide that the powers conferred by former G.S. 32A-2 shall apply to a Statutory Short Form Power of Attorney that was created in accordance with former G.S. 32A-1 prior to January 1, 2018. The intent of this subsection is to clarify that the powers so conferred by former G.S. 32A-2 are not to be construed as applying to the authorities described in G.S. 32C-2-204 through G.S. 32C-2-217 .

Editor’s Note.

Session Laws 2017-153, s. 3, provides, in part: “The Revisor of Statutes shall cause to be printed, as annotations to the published General Statutes, all relevant portions of the Official Comments to the Uniform Power of Attorney Act (2006) and all explanatory comments of the drafters of this act as the Revisor may deem appropriate.”

Effect of Amendments.

Session Laws 2018-142, s. 33, effective December 15, 2018, in subdivision (a)(4), inserted “including the rule of G.S. 32C-1-104 regarding durability of a power of attorney” following “provided by this Chapter”; and in subsection (c), substituted “in” for “and” following “prior statues.”