Financial Power of Attorney
Depending on the language used, the powers granted in a Financial Power of Attorney to the appointed agent may be broad, sweeping, and with unintended consequence. Your Attorney-in-Fact should be a competent and trustworthy adult, but need not be an attorney at law.
In general, a Financial Power of Attorney is durable and effective upon signing; that is, it will be effective immediately and will continue in force even if you become incapacitated; however, in North Carolina and South Carolina, you must record your Power of Attorney with your local county clerk-recorder for it to become durable, and there is an option to make this Power of Attorney non-durable.
Before you become incapacitated, a Financial Power of Attorney can be revoked in writing at any time, and you will retain the right to act on your behalf, in addition to your Attorney-in-Fact’s right to act on your behalf (and you should therefore stay in touch with your Attorney-in-Fact). You should notify your Attorney-in-Fact and any third parties who may be relying on the Power of Attorney of the revocation, and may also want to record the revocation with your local county clerk-recorder.
If your spouse is appointed your Attorney-in-Fact and you later divorce, the Financial Power of Attorney may be automatically revoked; therefore a new Financial Power of Attorney should be executed if you wish to ensure that your ex-spouse remains your Attorney-in-Fact.
If you do not intend that your ex-spouse remain your Attorney-in-Fact, you should notify your Attorney-in-Fact and any third parties who may be relying on the Financial Power of Attorney of the revocation, and may also want to record the revocation with your local county clerk-recorder.
A notary and two competent adult witnesses not related to you or to each other should be used when executing a Financial Power of Attorney. None of the witnesses should be the agent(s) being appointed.
An Acceptance of Appointment as Attorney-in-Fact should also be signed by the primary and any alternate agents appointed at the time the Financial Power of Attorney is executed; otherwise, the Attorney-in-Fact may not have any duty to act on your behalf. Print additional copies of the last page if more than one alternate agent is being named in the Financial Power of Attorney; omit the last page if no alternate agent is being named.
You should record a Financial Power of Attorney with the county clerk-recorder if it used in connection with a real estate transaction or other transaction subject to recording.
A Financial Power of Attorney does not authorize anyone to make health care decisions on your behalf. A durable power of attorney for health care should be used instead for such a purpose.
If a Financial Power of Attorney is taking the place of a prior Power of Attorney, be sure to use a Revocation of Power of Attorney form to revoke prior Powers of Attorney to avoid confusion.
If you have any questions about powers of attorney or do not understand the document, consult an attorney in your state for legal advice.