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Home / Courts / Trusts & Estates – Guardianship – Ward’s Death – Collector’s Appointment – Power of Attorney

Trusts & Estates – Guardianship – Ward’s Death – Collector’s Appointment – Power of Attorney

White v. Harold L. & Audree S. Mills Charitable Remainder Unitrust (Lawyers Weekly No. 12-07-0828, 15 pp.) (John C. Martin, Ch.J.) Appealed from Cabarrus County Superior Court. (Tanya T. Wallace, J.) N.C. App. Full-text opinion.

Holding: At the time the trial court entered summary judgment for defendants, named plaintiff Ray White no longer had the authority to sustain the present action because his ward had passed away. Although the trial court subsequently entered a consent order substituting the collector of the ward/decedent’s estate as plaintiff, we must vacate the summary judgment order against then-named plaintiff White and remand for the court’s consideration of any issues presented by the collector of the decedent’s estate.

Vacated and remanded.

We feel compelled to identify an inconsistency in the record. According to the terms of the decedent’s 1996 power of attorney, if another durable power of attorney was executed and acknowledged before the 1996 POA was registered with any N.C. county register of deeds, the 1996 POA “may be revoked” by the execution and acknowledgement of such a document pursuant to the terms of the 1996 POA. The decedent executed a new power of attorney in 2005 before the 1996 POA was recorded. It appears that the issue of the decedent’s competence at the time of the execution of the 2005 POA is a question of fact that should be considered and determined by a fact-finder.

 


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