Power of Attorney:  If you become ill or injured and you can’t take care of your own finances, someone else must step in to help.  With a financial power of attorney, you name a trusted person to pay bills, make bank deposits, watch over investments, collect insurance or government benefits, and handle other money matters on your behalf.  In North Carolina, the person you name to make decisions for you is called your attorney-in-fact.  Honesty, common sense, and dependability should be the most important factors in your decision.  It’s also wise to choose someone who lives nearby, which will make it easier to take care of practical tasks.  In North Carolina, you can draft your financial power of attorney so that it takes effect as soon as you sign it or so that it will not go into effect unless a doctor certifies that you have become incapacitated.

Living Will:  A living will is a legal document in which you direct whether your life will be prolonged by medical procedures in any of three circumstances:  (1) you have an incurable or irreversible condition that will result in your death within a relatively short period of time; (2) you become unconscious and your health care providers determine that, to a high degree of medical certainty, you will never regain consciousness; and/or (3) you suffer from advanced dementia or any other condition which results in substantial loss of your cognitive ability, and your health care providers determine that, to a high degree of medical certainty, the loss is not reversible.  A living will allows you to authorize or direct the withholding or withdrawal of life-prolonging measures (for example, respirator care and artificial nutrition or hydration) that would only serve to delay your death.  In a living will you may also direct the provision of artificial nutrition and/or artificial hydration, together with or separate from life-prolonging measures.

Health Care Power of Attorney:  A health care power of attorney is a legal document by which you give authority to another person to consent to or refuse any or all medical care, including mental health treatment, on your behalf.  This authority is only applicable if a physician or eligible psychologist determines that you are unable to make or communicate these decisions yourself.  You may authorize the designated person to consent to the withholding or withdrawal of life-prolonging measures, and direct your health care agent regarding those medical and/or mental health treatments you would want, and those you would not want.  In addition to making decisions in “life and death” situations, your health care agent also may be authorized to make more routine medical decisions for you (for example, to consent to X-rays or surgery).

Guardianship: Guardianship is a legal relationship whereby the Clerk of Court gives a person (the guardian) the power to make personal and/or financial decisions for another (the ward).

The first step in a Guardianship is the determination of incompetency. A family member or friend initiates the proceedings by filing a petition with the Clerk of Court in the county where the individual resides.  Generally a medical examination by a licensed physician is necessary to establish the condition of the individual. The Clerk appoints a guardian ad litem (who is a local lawyer that will represent the rights of the alleged incompetent) at a hearing before the Clerk. If the Clerk determines that the individual is unable to meet the essential requirements for his or her health and safety and manage his or her financial affairs, the Clerk then appoints a guardian and the process moves to step two, to select and appoint the guardian.

A guardian of the person can make personal decisions for the individual.  Unless limited by the Clerk, the guardian has the same rights, powers and duties over his ward as parents have over their minor children. A guardian of the estate has the power to make financial decisions for the ward. Often the Clerk appoints the same person to act guardian of both the estate and the person. That person would be a general guardian.

The guardian must file written reports with the court, annually. A guardian of the estate or a general guardian must keep detailed financial records and must comply with rigid requirements regarding investments and expenditures.

Probate and Estate Administration

Many families find that they will have to go through the probate/estate administration process in order to distribute their loved ones’ estate.  A will appoints someone to handle the estate, a position known as the executor.  If there is no will, a family member may qualify as administrator to handle the estate.  Legal counsel can be invaluable in helping the executor or administrator navigate this process.

We prepare all necessary court documents, arrange and prepare our clients for any necessary appearances in front of the court and deal with any third parties, such as creditors or real estate agents.  Our goal is to make the probate process as easy and painless as possible for family members and loved ones of those who have passed away.

Cite: This Is Law Pamphlet, Living Wills and Health Care Power of Attorneys, Sponsored by the North Carolina Bar Association