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Are You Prepared For Mental Incapacity?

April 1, 2015 By wrlaw

A power of attorney enables you to select who it is that you would want to handle your affairs in the event of your incapacity, as opposed to having the court decide this for you.  There are two types of power of attorney in North Carolina, a Durable Power of Attorney and a Health-Care Power of Attorney.

Durable Power of Attorney

The primary purpose of a Durable Power of Attorney is to give another person the legal authority to handle your assets on your behalf during your lifetime.  Absent a Durable Power of Attorney, if you become legally incompetent to handle your property, the court would have to appoint someone to act on your behalf in that regard. That person is called a Guardian of the Estate.

Health Care Power of Attorney

The primary purpose of a Health Care Power of Attorney is to give another person the legal authority to make health care decisions for you if you cannot make or communicate your own health care decisions.  Absent a Health Care Power of Attorney, if you are not able to make or communicate your own health care decisions, the court would have to appoint someone to do this for you. That person is called a Guardian of the Person.

If the same individual serves as both Guardian of the Estate and Guardian of the Person, that person is called a General Guardian.

Naming an Attorney-in-Fact and a Health Care Agent before incapacity is a good idea. It can avoid the unpleasantness and expense associated with having to be declared in incompetent by a court, to have a Guardian of the Person and/or Estate appointed and for the Guardian of the Estate to have to file accountings with the Clerk of Court. It can also avoid unpleasant disputes among family members and maybe even others as to who should be appointed by the Court to act on your behalf.

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