LEGAL GUIDE
Written by attorney Bill Powers | Sep 21, 2020

32C-1-112. Reimbursement and compensation of agent.

32C-1-112. Reimbursement and compensation of agent.

(a) If the terms of the power of attorney specify the amount or the way the compensation is to be determined, the agent is entitled to the compensation as specified.

(b) If the terms of the power of attorney do not specify the amount or the way the compensation is to be determined, and the principal thereafter becomes incapacitated, then subsequent to the principal's incapacity the agent is entitled to receive reasonable compensation as determined by the clerk of superior court in accordance with G.S. 32-59.

(c) Unless the power of attorney otherwise provides, an agent is entitled upon request to the clerk of superior court pursuant to G.S. 32-59 to be reimbursed for expenses properly incurred on behalf of the principal. (2017-153, s. 1; 2018-142, s. 29.)

§ 32C-1-113. Agent's acceptance.

Except as otherwise provided in the power of attorney, a person accepts appointment as an agent under a power of attorney by exercising authority or performing duties as an agent or by any other assertion or conduct indicating acceptance. (2017-153, s. 1.)

§ 32C-1-114. Agent's duties.

(a) Notwithstanding provisions in the power of attorney, an agent that has accepted appointment, when exercising a power under the power of attorney shall do all of the following:

(1) Act in accordance with the principal's reasonable expectations to the extent actually known by the agent and, otherwise, in the principal's best interest.

(2) Act in good faith.

(3) Act only within the scope of authority granted in the power of attorney.

(b) Except as otherwise provided in the power of attorney, an agent that has accepted appointment has no affirmative duty to exercise the powers or to continue to exercise the powers granted to the agent by the power of attorney, but if the agent exercises any of the granted powers, the agent shall, in the exercise of such powers, do all of the following:

(1) Act loyally for the principal's benefit.

(2) Act so as not to create a conflict of interest that impairs the agent's ability to act impartially in the principal's best interest.

(3) Act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances.

(4) Keep a record of all receipts, disbursements, and transactions made on behalf of the principal.

(5) Cooperate with a person that has authority to make health care decisions for the principal to carry out the principal's reasonable expectations to the extent actually known by the agent and, otherwise, act in the principal's best interest.

(6) Attempt to preserve the principal's estate plan, to the extent actually known by the agent, if preserving the plan is consistent with the principal's best interest based on all relevant factors, including the following:

a. The value and nature of the principal's property.

b. The principal's foreseeable obligations and need for maintenance.

c. Minimization of taxes, including income, estate, inheritance, generation-skipping transfer, and gift taxes.

d. Eligibility for a benefit, a program, or assistance under a statute or regulation.

(7) Repealed by Session Laws 2018-142, s. 30(a), effective December 14, 2018.

(c) When exercising a power under the power of attorney, an agent that acts in good faith is not liable to any beneficiary of the principal's estate plan for failure to preserve the plan.

(d) When exercising a power under the power of attorney, an act by an agent that is in good faith for the best interest of the principal is not voidable and the agent is not liable solely because the agent also benefits from the act or has an individual or conflicting interest in relation to the property or affairs of the principal.

(e) Reserved.

(f) Absent a breach of duty to the principal, an agent is not liable if the value of the principal's property declines.

(g) An agent that exercises authority to delegate to another person the authority granted by the principal or that engages another person on behalf of the principal is not liable for an act, error of judgment, or default of that person if the agent exercises care, competence, and diligence in selecting and monitoring the person.

(h) Except as otherwise provided in the power of attorney, an agent is not required to disclose receipts, disbursements, or transactions conducted on behalf of the principal unless ordered by a court or requested by the principal or a person designated by the principal in the power of attorney, a guardian of the estate, general guardian, or, upon the death of the principal, by the personal representative or successor in interest of the principal's estate. (2017-153, s. 1; 2018-142, s. 30(a).)

Additional resources provided by the author

32C-1-115. Exoneration of agent. A provision in a power of attorney relieving an agent of liability for breach of duty is binding on the principal and the principal's successors in interest except to the extent the provision relieves the agent of liability for breach of duty committed (i) in bad faith or (ii) with reckless indifference to the purposes of the power of attorney or the best interest of the principal. (2017-153, s. 1.) § 32C-1-116. Judicial relief. (a) The clerks of superior court of this State shall have original jurisdiction of proceedings under this Chapter. Except as provided in subdivision (4) of this subsection, the clerk of superior court's jurisdiction is exclusive. The following proceedings are included: (1) To compel an accounting by the agent, including the power to compel the production of evidence substantiating any expenditure made by the agent from the principal's assets. (2) To terminate a power of attorney or to suspend or terminate the authority of an agent where a guardian of the estate or a general guardian has been appointed. (3) To determine compensation for an agent under G.S. 32C-1-112(b). (4) To determine an agent's authority and powers, to construe the terms of a power of attorney created or governed by this Chapter, and to determine any question arising in the performance by an agent of the agent's powers and authority under a power of attorney governed by this Chapter, including, but not limited to, the following proceedings: a. To determine whether and to what extent an agent holds a specific grant of authority under G.S. 32C-2-201. b. To approve an agent's ability to make a gift on behalf of the principal where the gift is governed by G.S. 32C-2-217 because the power of attorney grants the agent only general authority with respect to gifts. c. To authorize the agent to make a gift of the principal's property under G.S. 32C-2-218. d. To authorize the agent to do an act described in G.S. 32C-2-201(a), other than the act to make a gift, under G.S. 32C-2-219. e. To determine whether and to what extent acceptance of a power of attorney shall be mandated under G.S. 32C-1-120(f). Any party may file a notice of transfer of a proceeding pursuant to this subdivision to the superior court division of the General Court of Justice as provided in G.S. 28A-2-6(h). In the absence of a removal to superior court, Article 26 of Chapter 1 of the General Statutes shall apply to a proceeding commenced under this Chapter to the extent consistent with this subsection. (b) Without otherwise limiting the jurisdiction of the superior court division of the General Court of Justice, the clerk of superior court shall not have jurisdiction under this subsection over the following actions: (1) To modify or amend a power of attorney instrument. (2) By or against creditors or debtors of an agent or principal. (3) Involving claims for monetary damages, including claims for breach of fiduciary duty, fraud, and negligence. (4) To set aside a power of attorney based on undue influence or lack of capacity. (5) For the recovery of property transferred or conveyed by an agent on behalf of a principal with intent to hinder, delay, or defraud the principal's creditors. (c) Proceedings brought under the provisions of subsection (a) of this section shall be commenced as prescribed for in, and shall be conducted in accordance with, estate proceedings under G.S. 28A-2-6 and may be brought by the following persons: (1) The principal or the agent. (2) A general guardian, guardian of the principal's estate, or guardian of the principal's person. (3) The personal representative of the estate of a deceased principal. (4) A person authorized to make health care decisions for the principal. (5) Any other interested person, including a person asked to accept a power of attorney. (d) Venue of any proceeding brought under subsection (a) of this section, is proper in any of the following: (1) The county in which the principal resides or domiciled. (2) Any county in which an agent resides. (3) Any county in which property of the principal is located. (e) Nothing in this section affects the right of a person to file an action in the Superior Court Division of the General Court of Justice for declaratory relief under Article 26 of Chapter 1 of the General Statutes. (f) Upon motion by the principal, the clerk of superior court shall dismiss a petition filed under subsection (a) of this section, unless the clerk of superior court determines the principal is incapacitated within the meaning of G.S. 32C-1-102(6). (g) Any party adversely affected by an order of the clerk of superior court in a proceeding commenced under subsection (a) of this section may appeal the clerk's order as provided in G.S. 1-301.3. (2017-153, s. 1; 2018-142, ss. 27(b), 28(b).)

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