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What is a Durable Power of Attorney? How to Obtain One and Who You Should Name as Your "Agent."8/31/2023
A Power of Attorney is a legal instrument that allows you to appoint another person to make decisions on your behalf, should you become unable to make those decisions yourself. There are two major types of Powers of Attorney: a Durable Power of Attorney and a Healthcare Power of Attorney. Today’s blog post will focus on Durable Powers of Attorney.
What is a Durable Power of Attorney? A Durable Power of Attorney is a legal document that allows you to appoint another person as your “agent” to make financial decisions on your behalf and handle your financial affairs should you become incapacitated and unable to handle your financial affairs on your own. The term “durable” simply means the powers granted to your agent are not terminated by your incapacity. Your agent is granted the power to act as you would be able to act in financial matters, including paying your bills and mortgage, selling your assets, obtaining loans in your name, transferring, withdrawing, or depositing funds into your bank accounts, filing your tax returns, accessing your safety deposit box(es), and more. Many people execute all four major estate planning documents (Will, Durable Power of Attorney, Healthcare Power of Attorney, and Advance Directive) at the same time as an overall estate planning strategy. Who should I choose as my agent? The agent serves in a fiduciary role, which means that the agent must act in your best interests. It is important to choose an agent whom you trust completely to handle your financial matters, should you become incapacitated. This is an extremely important designation, and you should be sure that the agent you choose is someone you know will protect you and your assets. Many people choose their spouse as their agent because they know and trust that their spouse will make wise financial decisions on their behalf. It is wise to choose a back-up agent, should your first choice agent not be able to fulfill the role. When will my Durable Power of Attorney become effective? Depending on your individual needs, your durable power of attorney can be written so it becomes effective as soon as you sign it, or it can become effective only when a doctor declares you incapacitated. Speak with your lawyer to help you decide which option is best for you. How do I get a Durable Power of Attorney? It is best to work with a lawyer who is qualified and knowledgeable regarding your state-specific laws to prepare a Durable Power of Attorney document on your behalf. The Durable Power of Attorney must be signed by you before a notary public to be valid. Can I revoke my Durable Power of Attorney? Yes, as long as you still have the capacity to do so, you can revoke your Durable Power of Attorney. In North Carolina, you can revoke a Durable Power of Attorney by revoking it in writing or by burning, tearing, cancelling, obliterating, or destroying the Durable Power of Attorney for the purpose of revoking it. If you were married to the person whom you named as agent, but then you subsequently divorced, the Durable Power of Attorney is automatically revoked upon divorce. What do I do with my Durable Power of Attorney document after I execute it? Inform the person whom you have chosen as your agent (and any back-up agents) that you have executed this important legal document. Discuss the Durable Power of Attorney document with your agent(s) and give them a signed copy to keep for their records. Let your agent (and back-up agents) know where the original is stored, should they need it. Please click the button below to schedule a consultation with us or reach out by phone to discuss the preparation of your Durable Power of Attorney and your overall estate planning needs. What is a will?
A will is a legal document that allows you to dictate who will inherit your property when you die. You can keep your will general and leave the entirety of your estate to your children, grandchildren, or whomever you wish to inherit from you. You can also choose to be more specific about who will inherit certain parts of your estate. You can choose different individuals to whom to leave your house, car, and personal property. You can leave important personal possessions to a specific individual, like leaving your engagement ring to your son or leaving your antique furniture to your daughter. You can often even leave your private club memberships or frequent flyer miles to a specific person in your will! Another function of a will is to provide for minor children in the unlikely worst-case scenario of your death before your children reach the age of majority. A will allows you to name who you want to be the guardian(s) for your minor children in the event of your death. A will can also create and define a testamentary trust to provide financially for your children. You appoint a person to serve as the trustee to manage the trust funds on behalf of your children. The trustee can be the same person as the guardian, but does not have to be. Finally, your will names an executor to administer your estate. It is wise to name a back-up executor if the first level executor is unavailable to serve in that role. Each state has specific rules that must be followed for a will to be considered valid. Many people will execute all four major estate planning documents (Will, Durable Power of Attorney, Healthcare Power of Attorney, and Advance Directive) at once as an overall estate planning strategy. What types of wills are there? There are two types of written wills in North Carolina: an “attested written will” and a “holographic will.” There is also a third type of will acceptable in North Carolina called a noncupative will, which is an oral or spoken will. In South Carolina, a will must be in writing and signed by two competent (uninterested) witnesses to be valid. Handwritten or oral wills are not permitted in South Carolina. Attested Written Will To be valid in North or South Carolina, an attested written will must be signed by you and signed by at least two competent and disinterested witnesses who watched you sign your will. This is the type of will our office can prepare for you. A suitable witness is typically someone who does not stand to inherit from you if you died without a will and will not inherit from you within the written will. If you execute a will in our office, we will provide two competent witnesses. Holographic Will A holographic will is a will that is written entirely in your handwriting and signed by you. No witnesses are required for a holographic will. A holographic will is valid if it was found in a place intended for safekeeping after your death. A holographic will is subject to strict legal requirements and may not be accepted by probate. This type of will is only valid in North Carolina if it is written exactly as North Carolina law requires. The safest option for distributing your assets pursuant to a will is an attested written will prepared by an attorney to ensure compliance with state laws. A handwritten will that does not contain two witnesses’ signatures is not valid in South Carolina. Noncupative Will A noncupative will is an oral will spoken by you while you are essentially on your death bed, with two competent witnesses who are there solely to witness your dying verbal testament. A noncupative will cannot dispose of real estate or real property but can only dispose of personal property (like a car, jewelry, household furnishings, etc.). A noncupative will is not valid in South Carolina. What should I include in my will? You should name your beneficiaries who you want to receive your real property, personal property, and any other property that you own upon your death. Your beneficiaries can be your spouse, children, parents, other relatives, friends, charitable organizations, or some combination of the recipients mentioned. You should name your executor who will make sure the terms of your will are followed. You should appoint guardians for your minor children, who would take custody of your minor children if you died. If you are establishing a trust for your minor children, you should appoint a person to serve as trustee to manage the assets on behalf of your children. Why do I need a will? To protect your spouse. If you do not execute a will that disposes of your assets, laws in South and North Carolina divide your property amongst your descendants. If you think all of your property automatically goes only to your spouse when you pass away so you don’t need a will, think again! In South and North Carolina, if you die without a will, your spouse will have to share your assets with your other descendants. If you have a child, your child will take a share of your assets. If you don’t have a child, but you have surviving parents, your parents will take a share of your assets. Don’t leave your spouse vulnerable– execute a will to protect your spouse financially. To protect your minor child(ren). If you have a minor child, you need to have a will that appoints a guardian for your child if both parents pass away before the child reaches the age of majority. In a worst-case scenario, you want to make sure that you have appointed a guardian who will raise your child. You do not want your child to be raised with a relative not of your choosing. You protect your child by appointing a guardian through a valid will. Additionally, you protect your minor child from spending through an inheritance at a young age by establishing a trust in your will and appointing a trustee to manage your assets for the benefit of your child until they have attained a certain age and maturity level, as defined by your will. Where should I store my will once it is executed? Store your will in a safe, dry location. Inform your chosen executor, back-up executor, chosen guardian(s), trustee(s), and close family members where the original will is located. In both North and South Carolina, your original will is needed for probate. A copy will not suffice. If you are interested in preparing a will, please click the button below to schedule a consultation or reach out to our office by phone. We can help you draft a will, which allows your loved ones to carry out your wishes even after you are gone. When you are trying to figure out child custody with your co-parent, you are really trying to define two things:
Coming to an Agreement Until there is an agreement for custody in place, each parent has equal rights and access to custodial time with the children of the marriage, with one exception: if you were never married to your child’s other parent, South Carolina law gives a mother sole custodial rights until another order is issued by a court on child custody. Coming to an agreement outside of court is always preferable to having a judge determine your custody arrangement. In an agreement, you and your co-parent maintain control over exactly what your custody arrangement looks like and can consider any factors that affect your children’s best interests. In South Carolina, an approval hearing is set after the agreement is in place so that a judge can review and approve the agreement as an order of the court. Physical Custody Physical custody is the amount of time a child spends with each parent. Joint physical custody is when parents share nearly equal amounts of time with the children. That can look like a week-on/week-off schedule or something else. While South Carolina statutes state that the family court must consider all custody options, including joint custody, the reality is that South Carolina case law disfavors true joint physical custody. The South Carolina Court of Appeals and Supreme Court have issued opinions opining that joint physical custody doesn’t create stability for a child. If you want joint physical custody, it is best that you come to an agreement because you are less likely to be granted joint custody by South Carolina courts in a child custody trial. Sole physical custody is when one parent has all of the time with the child. The non-custodial parent may have visitation, but does not have a significant amount of time with the child. Shared physical custody is the most common type of shared parenting time in South Carolina. This is when one parent has “primary” physical custody and the other parent has “secondary” physical custody, meaning the child lives primarily with one parent but visits the other parent regularly. Legal Custody Legal custody is the decision-making power regarding what’s in your child’s best interest for major decisions like education, medical, extracurricular activities, and religion. “Sole” legal custody is when one parent has the rights and responsibilities to make major decisions affecting the child’s best interest and does not have to consult or confer with the noncustodial parent. Joint legal custody is when both parents share the rights and responsibilities to make major decisions affecting the child’s best interest. The parents have to confer in good faith to come to a joint decision about what is in the child’s best interest. South Carolina does not favor mothers over fathers in a child custody determination and both parents are on an equal footing when determining child custody for a child of their marriage. Typical Parenting Time (Custody) Schedules Some common parenting time schedules upon which we see families agreeing and executing are: a “traditional” every other weekend from Friday until Sunday, a longer weekend from Thursday until Sunday or Monday, and week-on/week off. If one parent has an every other weekend schedule with their child, that parent will often have a weekly afternoon visit with the child from school pick-up until bedtime (or overnight), which makes it easier for the child and the parent not to go too long between seeing each other. Holiday Schedules In a typical holiday schedule, the holidays are equally divided between the parents and then each year the schedule alternates, so each parent can celebrate major holidays with the child every other year. For example, for Winter Break one parent will have the children from when school releases until the afternoon of Christmas Day (if you celebrate Christmas); the other parent will have the children from the afternoon of Christmas Day until the children return to school in the new year. The following year, the parents would alternate the schedule, with the parent who did not celebrate Christmas morning with the children the prior year having Winter Break parenting time first. Factors Considered If you are in court or coming to an agreement, the main consideration is what is in the best interests of the child. South Carolina law sets forth seventeen (17) factors to consider in determining child custody, which are listed below (from S.C. Code §63-15.240(B)): (1) the temperament and developmental needs of the child; (2) the capacity and the disposition of the parents to understand and meet the needs of the child; (3) the preferences of each child; (4) the wishes of the parents as to custody; (5) the past and current interaction and relationship of the child with each parent, the child's siblings, and any other person, including a grandparent, who may significantly affect the best interest of the child; (6) the actions of each parent to encourage the continuing parent-child relationship between the child and the other parent, as is appropriate, including compliance with court orders; (7) the manipulation by or coercive behavior of the parents in an effort to involve the child in the parents' dispute; (8) any effort by one parent to disparage the other parent in front of the child; (9) the ability of each parent to be actively involved in the life of the child; (10) the child's adjustment to his or her home, school, and community environments; (11) the stability of the child's existing and proposed residences; (12) the mental and physical health of all individuals involved, except that a disability of a proposed custodial parent or other party, in and of itself, must not be determinative of custody unless the proposed custodial arrangement is not in the best interest of the child; (13) the child's cultural and spiritual background; (14) whether the child or a sibling of the child has been abused or neglected; (15) whether one parent has perpetrated domestic violence or child abuse or the effect on the child of the actions of an abuser if any domestic violence has occurred between the parents or between a parent and another individual or between the parent and the child; (16) whether one parent has relocated more than one hundred miles from the child's primary residence in the past year, unless the parent relocated for safety reasons; and (17) other factors as the court considers necessary. Contrary to popular belief, there is no certain age when a child may decide where or with whom they live. If you are going before a judge, a child’s reasonable preference for custody must be considered by the judge, placing weight on the child’s age, experience, maturity, judgment and ability to express a preference. An older child or teen’s reasonable preference for custody will likely be given more weight than a younger child’s preference. “Restraining Orders” or Restraints Against Parents in Custody Orders In South Carolina, it is customary for courts (and custody agreements) to contain restraints against both parents. These restraints typically include restraints against disparaging the other parent or other parent’s family in front of the child or allowing others to do so in the child’s presence, consuming alcohol to excess and using illegal drugs with the child present, traveling outside of the state with the child without notifying the other parent of the itinerary, calling anyone other than the parents “mother” and “father,” and the like. Each county typically has standard restraints that judges like to see included in each custody agreement. If you’re faced with determining child custody in South Carolina, please click below to schedule a consultation or reach out to us. We know how precious your children are to you and we are here to guide you toward a resolution. Coming to an Agreement When you separate from your spouse, your main concern is probably what will happen with your child. Until there is a custody agreement in place, each parent has equal rights and access to custodial time with the children of the marriage. Coming to an agreement outside of court is always preferable to having a judge determine your custody arrangement. In an agreement, you and your co-parent maintain control over exactly what your custody arrangement looks like and can consider any factors that affect your children’s best interests. A custody agreement has many parts, including a physical custody schedule, holiday schedule, legal custody determination, defining telephone or Facetime contact with the child, and much more. This blog post is meant to give a brief overview of child custody in North Carolina, but there are nuances that cannot be expressed in a simple blog post. Please reach out to our office if you are faced with making a child custody determination. Physical Custody Physical custody is the amount of time the child spends with each parent. The physical custody arrangement includes the regular parenting time schedule (i.e., the schedule during the school year) and the holiday schedule (which includes summer vacation and takes precedence over the regular parenting time schedule). Regular Parenting Time (Custody) Schedules It is common in North Carolina for a judge to consider joint physical custody, where both parents have nearly equal parenting time, unless extenuating circumstances exist. Regular parenting time schedules come in as many varieties as there are families. Some regular parenting time schedules we see often are the following (please see the images at the end of this post for a visual explanation of these schedules):
Holiday Schedules In a typical holiday schedule, the holidays are equally divided between the parents and then each year the schedule alternates so each parent can celebrate major holidays with the child every other year. For example, for Winter Break one parent will have the children from when school releases until the afternoon of Christmas Day (if you celebrate Christmas); the other parent will have the children from the afternoon of Christmas Day until the children return to school in the new year. The following year the parents would alternate the schedule, with the parent who did not celebrate Christmas morning with the children the prior year having Winter Break parenting time first. Legal Custody Legal custody refers to which parent(s) have the right and responsibility to make major decisions that will have lasting significance for the child including medical, educational, and religious decisions. Legal custody can be shared equally between the parents, which is called joint legal custody, or it can be given to one parent, which is usually referred to as primary custody. If you decide joint legal custody is the best option, then it is important to include a “tiebreaking” mechanism in case you and the other parent disagree about a legal custody decision on behalf of your child. There are several options to use for a tiebreaking mechanism: (1) Mediation, (2) Arbitration, (3) you can agree to give one parent the tiebreaking vote if you come to an impasse, or (4) you can agree to split up the responsibility for tiebreaking with (for example) one parent having the tiebreaking vote for medical decisions and the other having the tiebreaking vote for educational decisions. What does a court consider when determining child custody? If you are going before a judge, the golden standard is what is in the best interests of the child. Child custody will be granted to the parent(s) who “will best promote the interest and welfare of the child.” When coming to an agreement with your spouse, what is in the best interests of your child should also be the primary consideration. A judge will show no custodial preference or presumption for mothers over fathers. All parents start on equal footing in the custody determination. The judge has wide discretion to consider any and all factors that are relevant to determining the best interests of the child. Some factors the court might consider are: the child’s age, the home environments of each parent, each parent’s caretaking abilities, the parents’ work schedules, and the likelihood of each parent to encourage the child’s relationship with the other parent. How will my child’s wishes be considered in the custody determination? There is no set age when children get to “choose” their custodial parent. An older child or teenager’s wishes should be given considerable weight when determining a child custody arrangement with the other parent. Teenagers who have their own lives including jobs and extracurricular activities and are able to drive are unlikely to adhere to child custody arrangement with which they disagree. A younger child’s wishes should be considered, but generally should not be determinative. If you are facing a child custody determination, please click below to schedule a consultation or reach out to us if you have questions. We know how precious your children are to you and we are here to guide you toward a resolution.   After divorce, the idea of a “fresh start” can be enticing. You may want to move away and start a new chapter of your life where no one knows you as your former spouse’s wife or husband. For a child, however, relocating to a new place can be difficult. Moving uproots a child from the home that they know, their school, and their friends. If you share a child with your former spouse, it is unlikely that you can relocate out-of-state easily with your child, even if you are the primary custodian of the child. Even if you do not have a custody agreement in place, if you share parenting time with a co-parent, it is not wise to move out-of-state without getting your co-parent’s consent or the court’s permission first. A court cannot tell you where to live and as an adult, you have the right to relocate, but that does not mean you can bring your child along with you in every circumstance.
Relocation with a Custody Order in place If you already have a child custody order in place, that is the first place you need to look to determine what is necessary if you want to relocate with your child. Many custody orders will specifically address relocation. Some custody orders explicitly state a geographic limit on how far you can move from the child’s hometown or a specific amount of notice you are required to give your co-parent before a relocation. For instance, your custody order may state that you do not need consent to move within the surrounding counties of your town. If your planned relocation is within that geographic limit, then you don’t need consent from your co-parent to relocate! You would just need to give your co-parent the required amount of notice prior to your relocation, per your custody order terms. If your custody order requires you to give your co-parent notice or receive consent to relocate, you need to consult with your co-parent about the relocation. Explain the reasons behind your relocation plan. Discuss a feasible plan for a new physical custody schedule or how you will maintain the current physical custody schedule. Consider how the child will be transported back and forth for the other parent’s parenting time and who will pay for any additional travel expenses (if you are making the choice to relocate, this additional cost may be something you take on). If you can get on the same page with your co-parent about relocation, you have the freedom to modify your custody arrangement as you see fit. If you and your co-parent agree on a new physical custody schedule and you need to modify your Consent Order for Child Custody, reach out to us to help with that process. Return to Court, if necessary If you notify your co-parent of your intention to relocate with your child and your co-parent does not give you consent, then you can file a motion or lawsuit with the court requesting to relocate. If granted, a new court order would be entered by the court. It is not a good idea to relocate with your child without getting the court’s permission if your co-parent does not consent. You could be in violation of your custody order and could be held in contempt of court, ordered to pay a fine, or even serve jail time. It could also hurt your own case later, as most judges do not want to see parents absconding across state lines with a child. If you relocate without permission of your co-parent or the court, that action will serve as evidence that you are not prioritizing your child’s relationship with the other parent and can negatively impact you. Additionally, your co-parent could file for and receive an emergency custody order for your child, which would result in you being forced to return the child to his or her home state. Challenging your co-parent’s proposed relocation If you are not the primary custodial parent, your co-parent plans a relocation and you disagree, you should of course first engage in a good faith discussion with your co-parent about why you oppose the relocation. If discussions fall flat, you can challenge the relocation in court. You would need to show the court that the proposed relocation is not in the child’s best interests. If the move will necessitate a change to the child’s school, remove accessibility to the child’s close family members who all live in the area and support the child, if the child has unique educational or sports opportunities in the area and would lose out on those opportunities if they relocated, or if the child moving would prevent a continued relationship with a parent for lack of resources to pay for travel or any other reason, the judge might find that the relocation is not in the child’s best interest. These are just examples and not the only considerations a judge might make in determining if a relocation is in a child’s best interest. What does a court consider in a relocation case? The court must consider all relevant factors in a parent’s request to relocate with a child. Most notably, your reasons for the relocation and whether the relocation is in the best interest of the child. You will need to prove to the court that the advantages of the move will outweigh any potential negative impact the move might have on a child. Factors the court may consider in North Carolina relocation cases are as follows:
Relocation with no Custody Order in place Again, it is not wise to relocate out-of-state without the other parent’s written permission. Seek your co-parent’s consent in writing first. If your co-parent will not agree to your relocation with the child, then you can file a motion or lawsuit requesting the court’s permission to relocate with the child. If you are considering relocating or your co-parent has brought up a proposed location, please reach out to our office. We can help you understand your options in a proposed relocation as it applies to your unique circumstances. |
AuthorLindsey Dasher is the Managing Partner at Dasher Law PLLC Archives
May 2024
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