Is a VA power of attorney that was not recorded valid in North Carolina where it is required to record a POA?

Asked over 2 years ago - Clayton, NC

In this case the principal and the agent both resided in VA when the power of attorney was signed and notarized. However the POA was not recorded as it is not required by the state of VA. Now the the principal and agent have both moved the NC where it is required to record a POA with the Register of Deeds where the principal resides. Is the POA that originated in VA still valid in NC?

Attorney answers (1)

  1. Rachel Lea Hunter

    Contributor Level 14

    1

    Lawyer agrees

    Answered . Maybe. I would need to see the power of attorney. If the principal is still mentally competent and if he/she no longer owns property in Virginia, just revoke the old power of attorney for Virginia and make a new one for North Carolina.

    If the principal is no longer mentally competent and owns property in North Carolina, then I would record the power of attorney where the prinicipal owns real property (land) or where the prinicpal resides. The problem is that the VA power of attorney, if not in the correct format, can be recorded an North Carolina by the register of deeds, but they are going to charge an additional fee for non-standard documents.

    Here is what NC law has to say about this:

    § 32A‑9. Registered durable power of attorney not affected by incapacity or mental incompetence.

    (a) All acts done by an attorney‑in‑fact pursuant to a durable power of attorney during any period of incapacity or mental incompetence of the principal have the same effect and inure to the benefit of and bind the principal and his successors in interest as if the principal were not incapacitated or mentally incompetent if the power of attorney has been registered under the provisions of subsection (b).

    (b) No power of attorney executed pursuant to the provisions of this Article shall be valid subsequent to the principal's incapacity or mental incompetence unless it is registered in the office of the register of deeds of that county in this State designated in the power of attorney, or if no place of registration is designated, in the office of the register of deeds of the county in which the principal has his legal residence at the time of such registration or, if the principal has no legal residence in this State at the time of registration or the attorney‑in‑fact is uncertain as to the principal's residence in this State, in some county in the State in which the principal owns property or the county in which one or more of the attorneys‑in‑fact reside. A power of attorney executed pursuant to the provision of this Article shall be valid even though the time of such registration is subsequent to the incapacity or mental incompetence of the principal.

    (c) Any person dealing in good faith with an attorney‑in‑fact acting under a power of attorney executed under this Article shall be protected to the full extent of the powers conferred upon such attorney‑in‑fact, and no person so dealing with such attorney‑in‑fact shall be responsible for the misapplication of any money or other property paid or transferred to such attorney‑in‑fact.

    You also need to file the POA at the courthouse with the clerk (this is in addition to recording at the register of deeds) and file annual reports unless excused. See NC GS
    § 32A‑11.

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