February 28, 1984
Subject:
Powers of Attorney; Reference to General Statutes Chapter 32A or 32B.
Requested By:
A. E. Blackburn Clerk of Superior Court Forsyth County Winston-Salem, North Carolina
Questions:
- Is a power of attorney that makes reference to Chapter 32B of the General Statutes legally effective as a durable power of attorney?
- Is a power of attorney that makes reference to Chapter 32A of the General Statutes legally effective as a durable power of attorney?
3.Which of these statutory references should be used in the future?
Conclusions:
- Yes.
- Yes.
- A reference to either Chapter can be used, however, it is suggested that a reference to Chapter 32A will be less confusing.
Chapter 626 of the 1983 Session Laws enacted a statutory short form power of attorney. The instrument can grant one or more of the powers defined in the act by incorporating by reference the powers set out therein. Chapter 626 also rewrote the previous durable power of attorney statute (G.S. 74-115.1) in order to make it consistent with the new short form power of attorney and also to address numerous complaints received by the General Statutes Commission over the years regarding the structure and procedural aspects of the statute. Similar to the previous statute, the new durable power of attorney statute provides that the instrument may become durable if it contains a statement that it was executed pursuant to the provision of the statute. Thus both the provisions relating to the statutory story form power of attorney and the provisions relating to a durable power of attorney contemplate a statutory reference within the instrument.
Chapter 626 was ratified on June 27, 1983 effective October 1, 1983. As introduced and as enacted the bill amended the General Statutes by adding a new Chapter 32B and the act was set out in Pamphlet No. 4 of the Advanced Legislative Service as Chapter 32B. However at the time there was no Chapter 32A in the General Statutes and therefore under the authority of G.S. 16410, and in conformity with the usual rules of codification, the Division of Legislative Drafting and Codification of the Department of Justice authorized the codification of the new provisions as Chapter 32A. Therefore the new provisions appear as Chapter 32A in the 1983 Cumulative Supplement to Volume 3D, Part II of the General Statutes.
Because Chapter 626 enacted the new provisions as Chapter 32B of the General Statutes those provisions will always appear in the 1983 Session Laws as Chapter 32B and therefore a power of attorney that makes reference to Chapter 32B of the General Statutes will be effective. Because the codification of the new provisions as Chapter 32A in the General Statutes was pursuant to statutory authority granted to the Division of Legislative Drafting and Codification a power of attorney that makes reference to Chapter 32A will be effective.
In order to eliminate confusion in the future the Division has suggested and the General Statutes Commission has agreed to sponsor clarifying legislation in the next General Assembly.
RUFUS L. EDMISTEN ATTORNEY GENERAL
Charles J. Murray Special Deputy Attorney General Revisor of Statutes