Due to the threat of COVID-19, many people are considering what will happen to them and their families if they contract the virus. Unfortunately, severe cases may leave a person incapacitated and unable to make important decisions for themselves.
If you are worried for the future, one important estate planning tool at your disposal is a Power of Attorney. This legal document grants power to another person to make decisions on your behalf. However, granting this authority to another party is a significant step, so it is recommended that you first speak with a trustworthy attorney. If you are wondering whether you should establish a Power of Attorney in case you get COVID, a knowledgeable lawyer could help you determine if it is the right option for you.
North Carolina General Statutes §32C-3-301 defines a Power of Attorney as a legal document that grants powers to a person over the legal affairs of another. According to the statute, a Power of Attorney can grant the ability to control:
Powers of Attorney can be specific or general. Specific orders give authority to act in a certain way for a certain purpose, such as to sell property. On the other hand, a general authority gives a person the ability to act in the best interest of the signee.
When creating a Power of Attorney it will either give another person immediate authority regardless of whether the creator is truly incapacitated or not, or authority only if the creator is truly incapacitated. Because of this, it is best to appoint the appropriate person to serve and in appropriate capacity now instead of waiting until a person receives a severe COVID diagnosis to create these documents.
Importantly, Powers of Attorney only grant authority over matters concerning property. North Carolina General Statutes §32C-3-301 specifically states that a Power of Attorney cannot grant the ability to make medical decisions. However, in the pandemic, many people are equally concerned about who will make medical treatment decisions on their behalf should they become incapacitated.
To grant this authority, a person must create a separate Health Care Power of Attorney with Living Will provisions. This estate planning tool can provide detailed instructions on what medical care a person wishes to receive if they are unable to make those decisions on their own. Unlike a Power of Attorney, a Health Care Power of Attorney with Living Will provisions only goes into effect once a doctor declares a person to be incapacitated. A knowledgeable attorney could further explain the differences and help a person decide to implement either a Power of Attorney or a Health Care Power of Attorney with Living Will provisions, or both, in case of a COVID diagnosis.
Understanding the role and function of a Power of Attorney is essential to proper estate planning. Especially in the age of COVID-19, effective use of this tool can give peace of mind during an uncertain time.
Still, creating a Power of Attorney should not be taken lightly. These documents grant the ability to control your legal and property rights, and they can take effect from the date of signature regardless of your health at the time. Before signing a Power of Attorney, it is recommended that you seek a doctor’s advice on your COVID diagnosis and consult an experienced lawyer. Reach out to our legal team to learn more about powers of attorney and proper estate planning during COVID-19.
Paul Yokabitus is the CEO and Managing Partner of Cary Estate Planning, a Cary, NC, estate planning law firm. With years of experience in estate and elder law, he has zealously represented clients in various legal matters, including estate planning, guardianship, Medicaid planning, estate administration, and other cases.
Paul received his Juris Doctor from the Campbell University School of Law and is a North Carolina Bar Association member. He has received numerous accolades for his work, including being named among the “Best Attorney in Cary” in 2016 and 2017 by Cary News and Rising Star in 2020-2023 by Super Lawyers.