New for NC: Uniform Power of Attorney Act

by Nexsen Pruet, PLLC

Nexsen Pruet, PLLC

As you may be aware, North Carolina adopted the Uniform Power of Attorney Act effective January 1, 2018.  The new POA Act effectively rewrites the entire POA statute as it applies to General Powers of Attorneys.  The new POA Act does not apply to Health Care Powers of Attorney.

If you have a General Power of Attorney, it is important to have it reviewed in light of the new statute to ensure that your document complies with the new requirements.  One of the major changes under the new law is that powers of attorney are automatically durable, meaning the Power of Attorney is still valid upon the incapacity of the Principal, unless the document explicitly states an intention that it not be durable.  Under the prior version of the statute, the reverse was true.  Traditionally and under the common law, powers of attorney are only valid so long as the principal has the capacity to sign contracts.  If the principal was incapacitated and unable to sign a contract, then neither could an agent on the principal’s behalf.  That changed when powers of attorney started including clauses stating that the power of attorney was valid to obligate the principal on contracts, even if the principal was incapacitated, making those powers of attorney “durable.”  Under the old statute, a clause making a power of attorney durable was only valid if the Power of Attorney was recorded with the register of deeds in the county of the principal’s residence.  The new statute changes this requirement, and does not require the power of attorney to be recorded with the register of deeds for to be durable.  They will still need to be recorded as part of any real estate transactions being performed by the Agent on the Principal’s behalf. 

In addition, the term “Attorney-in-Fact” has been dropped and replaced with the simpler term “Agent” to describe the appointee under a power of appointment.  Another definitional change is that the law now refers to “incapacity” of the principal, no longer using the term “disability.”  This change is to acknowledge the fact that being disabled does not necessarily render an individual incapable of managing their property or business affairs.  The definition of incapacity stresses the inability to manage property or business affairs.  This distinction between incapacity and disability is especially important if you are using springing powers of attorney, which only become effective upon the incapacity of the principal.

Another major change is that powers of attorney now must be acknowledged, no other witnesses are required except the notary – whereas POAs executed before January 1, 2018 were sufficient with just witnesses, all POAs executed January 1, 2018 or later require a notary acknowledgement.  A power of attorney that was validly executed prior to January 1, 2018 under the laws as they existed at that time is still valid.  So if clients have powers of attorneys that were witnessed but not acknowledged, they do not need to worry that their powers of attorney are no longer valid.

The new act also creates a category of “hot powers” that need to be explicitly stated in a power of attorney for the agent to possess those powers.  The rules of construction in the new statute apply to POAs created prior to January 1, 2018.  Whether or not the POA was created before or after January 1, 2018 is irrelevant to the requirement that the hot powers be explicit in the document, unless the application of the new statute would substantial impair the rights of a party to a POA executed prior to January 1, 2018.  Therefore, if you have a power of attorney executed prior to January 1, 2018, the agent can only exercise the hot powers if they are explicitly stated in the power of attorney.

The NC Hot Powers are powers to

a. Make a gift.
b. Create or change rights of survivorship.
c. Create or change a beneficiary designation.
d. Delegate authority granted under the power of attorney.
e. Waive the principal's right to be a beneficiary of a joint and survivor annuity,
including a survivor benefit under a retirement plan.
f. Exercise fiduciary powers that the principal has authority to delegate.
g. Renounce or disclaim property, including a power of appointment.

In addition to the powers listed above, there are also hot powers with respect to Trusts, specifically the powers to:

a. Exercise the powers of the principal as settlor of a revocable trust in accordance with G.S. 36C-6-602.1

b. Exercise the powers of the principal as settlor of an irrevocable trust to consent to the trust's modification or termination in accordance with G.S. 36C-4-411(a).

The legislature also created a statutory form general power of attorney, and limited power of attorney as to real estate.   The statutory form power of attorney is very generic and does not address many situations we encounter with our clients.  The statutory form power of attorney is not a substitute for a well-drafted power of attorney tailored to a client’s individual needs.  In our estate planning practice, we do not use the statutory form general power of attorney, but instead our own modified form as a starting point for drafting powers of attorneys for clients.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Nexsen Pruet, PLLC | Attorney Advertising

Written by:

Nexsen Pruet, PLLC

Nexsen Pruet, PLLC on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.