Questionnaire to Help You Prepare
to See Your Attorney about a Durable Power of Attorney

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To help you prepare to see your attorney, you may use the following questionnaire to compile information your attorney will need to help you develop an estate plan. Your attorney may prefer to use other questionnaires and may need additional information. Call your attorney before your appointment to see what information he or she may need. You may use the following questionnaire, either by typing your answers directly on the screen or by printing a blank copy and filling out the hard copy. If you choose to type in your answers directly on the screen, print a copy when you are finished. Exiting the program will lose any information you have typed into the questionnaire. Do not try to save your answers in a file because your answers will be erased in the saved file. You will not be asked to transmit your answers over the phone line, so your answers are as secure as your computer. Tip: Print the file often to make sure that you do not lose the information you have entered. Or, fill out a hard copy first, and then enter the information on the computer screen to print.

A power of attorney gives someone the legal authority to act for you. You are the "principal," and the person you give the power to is your "attorney-in-fact." You may name your spouse, an adult child, a relative or trusted friend to be your attorney-in-fact. Actions of your attorney-in-fact (authorized by your power of attorney) are legally your actions. A regular power of attorney ends if you become incapacitated or mentally incompetent. A durable power of attorney remains or becomes effective if you become incapacitated or mentally incompetent.

If you do not give someone your durable power of attorney, a court may need to appoint a guardian for you if you become incapacitated or mentally incompetent. If a court finds you legally incompetent, you lose the right to manage your affairs. A durable power of attorney avoids putting you and your family through a long and expensive guardianship proceeding.

1. Do you want a durable power of attorney?

Yes No

If you answered "Yes," please provide the following information.

2. Identification of principal.

Your full name (please include nick names, maiden name, aliases, etc.):

Address:
City, State:
Zip:
County:

3. Identification of attorney-in-fact.

Full name of your attorney-in-fact:

Address:
City, State:
Zip:
County:
Home phone number:
Work phone number:
Relationship to principal:

4. Identification of substitutes. You may name one or more substitutes to serve as your attorney-in-fact if your first choice cannot or will not serve.

Full name of substitute attorney-in-fact:

Address:
City, State:
Zip:
County:
Home phone number:
Work phone number:
Relationship to principal:

Full name of substitute attorney-in-fact:

Address:
City, State:
Zip:
County:
Home phone number:
Work phone number:
Relationship to principal:

5. Powers. You may give your attorney-in-fact full power to act in your place. Giving your attorney-in-fact broad power assures that he or she can handle all of your affairs. Powers usually given to an attorney-in-fact are listed below. Please check all of the powers you wish to give your attorney-in-fact.

Real property transactions
Personal property transactions
Bond, share, and commodity transactions
Banking transactions
Safe deposits
Business operating transactions
Insurance transactions
Estate transactions
Personal relationships and affairs
Social security and unemployment
Benefits from military service
Tax
Employment of agents
Gifts to charities, and to individuals other than the attorney-in-fact
Gifts to the named attorney-in-fact
Management of lawsuits
Borrowing money
Investments
Contracts

6. Health care powers. Do you have a health care power of attorney?

Yes No

If you do not have a health care power of attorney, do you want to give your attorney-in-fact the power to make your medical decisions if you cannot make them yourself?

Yes No Not applicable

7. The power to appoint a substitute. Do you want to give your attorney-in-fact the power to appoint someone else to serve as your attorney-in-fact? Without this provision, your power of attorney may lapse because the people you have named are unable or unwilling to serve. This provision allows your attorney-in-fact to name a substitute if he or she cannot serve.

Yes No

8. Recommendation of guardian. Your durable power of attorney makes it unnecessary to have a guardianship proceeding brought against you. However, it does not prevent someone from petitioning the court to have you declared incompetent. In your durable power of attorney, you may nominate someone to serve as your guardian if a court finds you legally incompetent. This is an important right because a court-appointed guardian has the right to revoke your power of attorney or to name someone else as your attorney-in-fact. If you want some control over who takes care of you and your property, you may want to recommend a guardian.

There are three types of guardians

• A guardian of the estate takes care of your property. He or she must be a resident of North Carolina.
• A guardian of the person takes care of you and your personal needs. He or she may be either a resident or nonresident of North Carolina.
• A general guardian takes care of both you and your property. He or she must be a resident of North Carolina.

Do you want to recommend your attorney-in-fact to be your guardian?

Yes No

If not, do you want to recommend someone else?

Yes No Not applicable

If so, who? (Give full name and address):

Full name of recommended guardian:

Address:
City, State:
Zip:
County:
Home phone number:
Work phone number:
Relationship to principal:

Do you want your guardian to serve without bond or security? This requirement is often waived.

Yes No Not sure

Additional instructions about your recommended guardian:

9. Effective date. Your durable power of attorney may be effective immediately or only if you become incapacitated or mentally incompetent. If it is effective immediately, your attorney-in-fact may perform any of the actions authorized by the power of attorney. If you do not wish to give your attorney-in-fact these powers immediately, you may want to make it effective only if you become incapacitated or mentally incompetent. However, if it is not effective immediately, your attorney-in-fact may have difficulty convincing someone that he or she has the power to act for you. For more information, read the section on springing powers.

Do you want your durable power of attorney effective immediately?

Yes No Not sure

Or, do you want it effective only if you become incapacitated or mentally incompetent?

Yes No Not sure

10. Test for effective date. If you chose to make your durable power of attorney effective only if you become incapacitated or mentally incompetent, you may specify who makes this determination. For example, you may specify that your durable power of attorney is effective only after two doctors have stated in writing that you are incapacitated or mentally incompetent. If your durable power of attorney does not specify who makes this determination, your durable power of attorney is effective when your attorney-in-fact states in a sworn affidavit that you are incapacitated or mentally incompetent. Thus, your attorney-in-fact determines when your durable power of attorney is effective. For more information, read the section on springing powers.

Do you want to specify a test for determining when your durable power of attorney is effective?

Yes No Not sure

If so, what test?

11. Inventories and accountings. If you become incapacitated or mentally incompetent, your attorney-in-fact must keep full and accurate records of anything he or she does on your behalf. Your attorney-in-fact must file inventories and accountings with the clerk of the superior court unless you waive this requirement.

Do you want your attorney-in-fact to file inventories and accountings with the clerk of the superior court? This requirement is often waived.

Yes No Not sure

12. Compensation. Unless your power of attorney provides otherwise, your attorney-in-fact is entitled to compensation. You may set a method for paying your attorney-in-fact in your power of attorney. Or, the clerk of superior court may decide how much to pay your attorney-in-fact, not to exceed 5 percent of the property.

Do you want to compensate your attorney-in-fact?

Yes No Not sure

If so, how much? (Percent of property and receipts handled, statutory amount, flat fee, etc.)

13. Registration. A durable power of attorney is valid after you become incapacitated or mentally incompetent only if it is registered in the office of the register of deeds in one of the following places:

• in the county named in your power of attorney;
• if no county is named, in the county of your legal residence;
• if you do not have a legal residence in North Carolina, in a county where you own real property; or
• in the county where your attorney-in-fact lives.

Your durable power of attorney may be registered after you become incapacitated or mentally incompetent.

If you required your attorney-in-fact to file inventories and accountings, a copy of your durable power of attorney must be filed with the clerk of superior court within 30 days after filing the power of attorney in the register of deeds office.

14. Interests in land. List all cities and counties where you hold any interest in land in North Carolina:

List all cities, states and counties where you hold any interest in land outside of North Carolina:

15. Any other questions or comments about your durable power of attorney?

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Prepared by Carol A. Schwab, J.D., LL.M.
Professor and Extension Specialist, NC State University.

This publication is provided as a public service and is designed to acquaint you with certain legal issues and concerns. It is not designed as a substitute for legal advice, nor does it tell you everything you may need to know about this subject. Future changes in the law cannot be predicted, and statements in this publication are based solely on the laws in force on the date of publication.

WARNING: This questionnaire is designed to help your attorney prepare the appropriate legal document. Providing answers to the questionnaire has no legal effect and is not a substitute for the legal document itself.

Date: August 2000