The Quill – October 2020

On January 1, 2018, North Carolina adopted the Uniform Power of Attorney Act. This statute is found at Chapter 32C of the North Carolina General Statutes. The Uniform Act replaced the previous statute which was found at Chapter 32A of the General Statutes. We have seen multiple instances of Powers of Attorney that were executed after January 1, 2018, but that made reference to Chapter 32A (which is the old statute). Particularly, concerning is the standard language contained in such documents that goes something like this: “This Power of Attorney is executed pursuant to the provisions of Chapter 32A of the North Carolina General Statutes.” Reference to the provisions of a now defunct statute sounds like a problem to me. (Must have learned that in law school). Fortunately, the drafters of the statute considered the prospects of this happening and added the following provision to NCGS 32C-4-403:

(c) References to prior statutes in powers of attorney, whether executed on or after the adoption of this Chapter shall be deemed to refer to the corresponding provisions this Chapter unless application of the rule of construction would substantially impair substantial rights of a party.

So, if a PoA makes a reference to 32A, or a particular provision of 32A, the likelihood is that NCGS 32C-4-403 saves it.

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