NORTH CAROLINA GENERAL ASSEMBLY

1961 SESSION

 

 

CHAPTER 341

SENATE BILL 34

 

 

AN ACT TO PROVIDE FOR THE APPOINTMENT OF AN ATTORNEY IN FACT WHICH SHALL CONTINUE TO BE EFFECTIVE NOTWITHSTANDING THE INCAPACITY OR INCOMPETENCE OF THE PRINCIPAL THEREIN.

 

The General Assembly of North Carolina do enact:

 

Section 1.  Chapter 47 of the General Statutes is hereby amended by adding a new Section immediately following Section 47‑115 in the 1959 Cumulative Supplement to Volume 2A of the General Statutes to be numbered Section 47‑115.1 to read as follows:

"§ 47‑115.1.  Appointment of Attorney in Fact which may be continued in effect notwithstanding incapacity or mental incompetence of the principal therein. (a) Any person twenty‑one (21) years of age or more and mentally competent may as principal execute a power of attorney pursuant to the provisions of this Section which shall continue in effect until revoked as hereinafter provided notwithstanding any incapacity or mental incompetence of such principal which occurs after the date of the execution and acknowledgment of the power of attorney.

"(b)      The power of attorney shall be in writing, signed by the principal under seal, acknowledged by the principal before an officer authorized to take the acknowledgment of deeds whose authority is recognized under the law of North Carolina in effect at the time of such acknowledgment, and delivered to the attorney in fact.

"(c)       The power of attorney shall contain a statement that it is executed pursuant to the provisions of this Section, or shall contain such other language as shall clearly indicate the intention that the power of attorney shall continue in effect notwithstanding the incapacity or incompetence of the principal.

"(d)      No power of attorney executed pursuant to the provisions of this Section shall be valid but from the time of registration thereof in the office of the register of deeds of that county in this State designated in the power of attorney, or if no place of registration is designated, in the office of the register of deeds of the county in which the principal has his legal residence at the time of such registration or, if the principal has no legal residence in this State at the time of registration or the attorney in fact is uncertain as to the principal's residence in this State, in some county in the State in which the principal owns property or the county in which one or more of the attorneys in fact reside. Within thirty (30) days after the registration of the power of attorney as above provided, the attorney in fact shall file with the Clerk of Superior Court in the county of such registration a copy of the power of attorney, but failure to file with the clerk shall not affect validity of the instrument.

"(e)       Every power of attorney executed pursuant to the provisions of this Section shall be revoked by:

(1)        the death of the principal; or

(2)        the appointment of a guardian or trustee of the property in this State of the principal, and the registration of a certified copy of such appointment in the office of the register of deeds where the power of attorney has been registered; or

(3)        registration in the office of the register of deeds where the power of attorney has been registered of an instrument of revocation executed and acknowledged by the principal while he is not incapacitated or mentally incompetent, or by the registration in such office of an instrument of revocation executed by any person or corporation who is given such power of revocation in the power of attorney, with proof of service thereof in either case on the attorney in fact in the manner prescribed for service of summons in civil actions.

"(f)       Any person dealing in good faith with an attorney in fact acting under a power of attorney executed and then in effect under this Section shall be protected to the full extent of the powers conferred upon such attorney in fact, and no person so dealing with such attorney in fact shall be responsible for the misapplication of any money or other property paid or transferred to such attorney in fact.

"(g)       Every attorney in fact acting under a power of attorney in effect under this Section shall keep full and accurate records of all transactions in which he acts as agent of the principal and of all property of the principal in his hands and the disposition thereof.

"(h)       If the power of attorney provides for rendering inventories and accounts, such provisions shall govern. Otherwise, the attorney in fact shall file in the office of the Clerk of the Superior Court of the county in which the power of attorney is registered, inventories of the property of the principal in his hands and annual and final accounts of the receipt and disposition of property of the principal and of other transactions in behalf of the principal. The power of the clerk to enforce the filing and his duties in respect to audit and recording of such accounts shall be the same as those in respect to the accounts of administrators, but the fees and charges of the clerk shall be computed or fixed only with relation to property of the principal required to be shown in the accounts and inventories. The fees and charges of the clerk shall be paid by the attorney in fact out of the principal's money or other property and allowed in his accounts. If the powers of an attorney in fact shall terminate for any reason whatever, he, or his executors or administrators, shall have the right to have a judicial settlement of a final account by any procedure available to executors, administrators or guardians.

"(i)        A power of attorney executed under this Section may contain any provisions, not unlawful, relating to the appointment, resignation, removal and substitution of an attorney in fact, and to the rights, powers, duties and responsibilities of the attorney in fact.

"(j)       If all attorneys in fact named in the instrument or substituted shall die, or cease to exist, or shall become incapable of acting, and all methods for substitution provided in the instrument have been exhausted, such power of attorney shall cease to be effective. Any substitution by a person authorized to make it shall be in writing signed and acknowledged by such person. Notice of every other substitution shall be in writing signed and acknowledged by the person substituted. No substitution or notice shall be effective until it has been recorded in the office of the register of deeds of the county in which the power of attorney has been recorded."

Sec. 2.  G.S. 2‑16 as the same presently appears in Recompiled Volume 1B of the General Statutes is hereby amended by rewriting Subsection 17 thereof to read as follows:

"17.      To audit the accounts of executors, administrators, collectors, receivers, commissioners, guardians, and attorneys in fact when required by G.S. 47‑115.1(h)."

Sec. 3.  G.S. 2‑42 as the same presently appears in Recompiled Volume 1B of the General Statutes is hereby amended by rewriting Subsection 12 thereof to read as follows:

"12.      Record of appointments, which shall contain a record of appointments of executors, administrators, guardians, collectors, and attorneys in fact appointed pursuant to G.S. 47‑115.1, with revocations of all such appointments; and on which shall be noted all subsequent proceedings relating thereto."

Sec. 4.  G.S. 2‑42 as the same presently appears in Recompiled Volume 1B of the General Statutes is hereby further amended by rewriting Subsection 14 thereof to read as follows:

"14.      Record of accounts, which shall contain a record of accounts, in which must be recorded inventories and annual accounts of executors, administrators, collectors, trustees under assignments for creditors, guardians, and attorneys in fact when required by G.S. 47‑115.1(h), as audited by him from time to time."

Sec. 5.  All laws and clauses of laws in conflict with this Act are hereby repealed.

Sec. 6.  This Act shall be in full force and effect from and after its ratification.

In the General Assembly read three times and ratified, this the 3rd day of May, 1961.