N.C. Gen. Stat. § 32C-1-108
Nomination of guardian; relation of agent to court-appointed fiduciary
Redline — June 1, 2021 → current.View current text →
Current — April 1, 2022
As of June 1, 2021
(1) In a power of attorney, a principal may nominate a guardian of the principal's estate, or guardian of the principal's person, or general guardian for consideration by the clerk of superior court if protective proceedings for the principal's estate or person are begun after the principal executes the power of attorney. Except for good cause shown or disqualification, the clerk of superior court shall make its appointment in accordance with the principal's most recent nomination. If a guardian of the principal's person is nominated in a health care power of attorney, that nomination shall control over the nomination, if any, in a power of attorney.
(1) In a power of attorney, a principal may nominate a guardian of the principal’s estate, or guardian of the principal’s person, or general guardian for consideration by the clerk of superior court if protective proceedings for the principal’s estate or person are begun after the principal executes the power of attorney. Except for good cause shown or disqualification, the clerk of superior court shall make its appointment in accordance with the principal’s most recent nomination. If a guardian of the principal’s person is nominated in a health care power of attorney, that nomination shall control over the nomination, if any, in a power of attorney.
(2) If, after a principal executes a power of attorney, the clerk of superior court appoints a guardian of the principal's estate, or general guardian or other fiduciary charged with the management of some or all of the principal's property, the agent is accountable to the guardian or the fiduciary as well as to the principal. The power of attorney is not terminated and the agent's authority continues unless suspended or terminated by the clerk of superior court pursuant to G.S. 32C-1-116(a)(2) or terminated by the guardian of the principal's estate or general guardian pursuant to G.S. 32C-1-110(a)(7) or G.S. 32C-1-110(b)(5).
(2) If, after a principal executes a power of attorney, the clerk of superior court appoints a guardian of the principal’s estate, or general guardian or other fiduciary charged with the management of some or all of the principal’s property, the agent is accountable to the guardian or the fiduciary as well as to the principal. The power of attorney is not terminated and the agent’s authority continues unless suspended or terminated by the clerk of superior court pursuant to G.S. 32C-1-116(a)(2) or terminated by the guardian of the principal’s estate or general guardian pursuant to G.S. 32C-1-110(a)(7) or G.S. 32C-1-110(b)(5).
History
(2017-153, s. 1; 2018-142, s. 27(a).)
NORTH CAROLINA COMMENT
Subsection (a) and (b) modified these subsections of Section 108 of the Uniform Power of Attorney Act to include "general guardian" and to substitute "clerk of superior court" for "courts" to conform to North Carolina law.
The first two sentences of subsection (a), as so modified, are almost identical to former G.S. 32A-10(b) providing generally that a principal may nominate in the power of attorney a guardian of his estate or guardian of the person for consideration by the clerk of superior court if protective proceedings for the principal are commenced and that the clerk of superior court shall make the appointment in accordance with that nomination except for good cause or disqualification.
Subsection (a), however, modified subsection (a) of Section 108 of the Uniform Power of Attorney Act by adding the last sentence to clarify that the nomination of a guardian of the person in the health care power of attorney provided for in G.S. 32A-22(b) shall have control over any such nomination in a power of attorney.
The first sentence of subsection (b) is consistent with the first sentence of former G.S. 32A-10(a) providing generally that if the court appoints a guardian or other fiduciary for the principal, the agent is accountable to that fiduciary as well as to the principal.
Subsection (b) modifies that subsection of Section 108 of the Uniform Power of Attorney Act by substituting the words "in accordance with the Chapter" in place of the words "by the court". This change was made to take into account the power to terminate a power of attorney and the authority of the agent (i) by a guardian of the estate or a general guardian pursuant to G.S. 32C-1-110(a)(7) and (b)(5) which modified Section 110 of the Uniform Power of Attorney Act in this regard, and (ii) by the clerk of superior court who also has the authority to "limit or suspend" authority of an agent pursuant to G.S. 32C-1-116(a)(2) where a guardian of the estate or general guardian has been appointed.
Official source: North Carolina General Assembly. Reproduced from public-domain North Carolina statutes; confirm against the official source for the current text. Not legal advice.