Durable Powers of Attorney Under North Carolina Law

Clinical Prof. Kate Mewhinney (Wake Forest University School of Law) has recently published her article entitled Gifts with Powers of Attorney – Are We Giving the Public What it Wants?, N.C. St. B.J., Winter 2005, at 24.  Prof. Mewhinney explains:

Powers of attorney often fail for one of two reasons. The person signed a statutory “short form” power of attorney with limited or no gifting authority. Or he or she used an attorney-drafted document that negates the utility of the gift power. Too many attorneys include “gifting” provisions that are suitable for the Mercedes owner, when the client is still paying off a Chevy. In either case, the problem is only discovered when the principal is no longer competent—and thus unable to cure the problem by executing a new document.

The first problem can be resolved by an amendment to the North Carolina statutory power of attorney that broadens the powers in the widely used form. The second is not so easily solved, but the beginning point is increasing the knowledge level of lawyers who do powers of attorney so that they appreciate the importance of gifting for government benefit programs.