If a North Carolina durable power of attorney references Chapter 32B of the General Statutes (the session-law designation) instead of Chapter 32A (the codified designation), is it still legally effective?
Plain-English summary
A. E. Blackburn, Clerk of Superior Court of Forsyth County, asked the AG whether a power of attorney that referenced "Chapter 32B" of the General Statutes (instead of "Chapter 32A") still worked as a durable power of attorney.
The 1984 AG answered yes to both labels. The history is that Chapter 626 of the 1983 Session Laws created a new statutory short form power of attorney and rewrote the prior durable power of attorney statute (formerly G.S. 74-115.1). The bill was introduced and enacted as adding a new Chapter 32B to the General Statutes, and that is how it appeared in the 1983 Session Laws and in Pamphlet No. 4 of the Advanced Legislative Service.
But at the time of enactment there was no Chapter 32A in the General Statutes either, so the Division of Legislative Drafting and Codification of the Department of Justice, exercising the codification authority granted by G.S. 164-10, codified the new act as Chapter 32A. That is where it appeared in the 1983 Cumulative Supplement to Volume 3D, Part II of the General Statutes.
The practical consequence: a citation to Chapter 32B traces back to the Session Laws and is correct on that path. A citation to Chapter 32A traces to the codified General Statutes and is correct on that path. Either form is a valid statutory reference, and a power of attorney that contains the statutory reference needed to invoke durability is effective whichever label is used.
The Division of Legislative Drafting and Codification told the AG it would sponsor clarifying legislation in the next General Assembly to eliminate confusion going forward.
Currency note
This opinion was issued in 1984. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. North Carolina power-of-attorney law has been comprehensively rewritten since 1984, most notably with the adoption of the North Carolina Uniform Power of Attorney Act in 2017 (Chapter 32C), which superseded much of Chapter 32A. Modern POA drafting should reference Chapter 32C, not Chapter 32A or Chapter 32B. The narrow drafting puzzle the 1984 opinion addressed has been overtaken by subsequent statutory restructuring.
Historical context: what the AG concluded
The 1984 opinion's reasoning is procedural rather than substantive. The conclusion turned on three points.
The session-law citation is always correct. A statute appears in the Session Laws under the chapter designation given by the General Assembly at enactment. That designation is fixed and historical. Whatever the codifier later does, the session-law cite remains accurate.
The codification is statutorily authorized. G.S. 164-10 grants the Division of Legislative Drafting and Codification authority to renumber and rearrange acts when codifying them. The shift from Chapter 32B to Chapter 32A was an exercise of that authority and produces a valid cite in the General Statutes.
Both labels point to the same operative text. A POA that wants to invoke durability must contain a statement that it was executed under the statute. The 1984 AG read that requirement functionally: the citation form does not matter as long as the reader can find the same operative provisions.
The opinion's recommendation to use Chapter 32A going forward is a practical one. The General Statutes is the day-to-day reference for North Carolina lawyers; the Session Laws is consulted for legislative history. Citing the codified chapter avoids questions when the document is later reviewed by a clerk, a successor agent, or a court.
Background and statutory framework
Before 1983, the durable power of attorney statute was G.S. 74-115.1. That section had drawn complaints over time from the General Statutes Commission and from practitioners about its structure and procedural details.
Chapter 626 of the 1983 Session Laws (ratified June 27, 1983, effective October 1, 1983) did two things in tandem. It enacted a new statutory short form power of attorney, which allowed a principal to grant defined categories of authority by incorporating the statute by reference. And it rewrote the durable-POA provisions to align with the new short form and to address the accumulated complaints.
The drafting puzzle that produced the 1984 AG question was a chapter-numbering accident. The 1983 act was bill-drafted as Chapter 32B. At codification, no Chapter 32A existed yet, so the codifier moved the new act to Chapter 32A under G.S. 164-10. The Session Laws cite (Chapter 32B) and the General Statutes cite (Chapter 32A) refer to the same operative provisions, which created two valid but different statutory citations for the same act.
A POA that wanted to be durable needed a statement that it was executed under the statute. The AG took a functional view: either statutory label gets a careful reader to the same operative section, and either citation suffices for durability.
Common questions
What is a durable power of attorney, and why does the chapter reference matter?
A durable power of attorney is a written instrument granting an agent authority that survives the principal's later incapacity. The 1983 statute made durability available only if the instrument contained a statement that it was executed under the durable-POA statute. The chapter reference is how that statement is conventionally made.
If a 1983-era POA cites Chapter 32B, is it valid today?
The 1984 opinion says it was valid then. Whether it is enforceable today depends on subsequent law, including the 2017 adoption of Chapter 32C (the Uniform Power of Attorney Act). Older POAs may need to be re-executed under the current statute, or may benefit from a savings clause in the newer law. A North Carolina lawyer should be consulted for any old POA still being relied on.
Why did the codifier change the chapter number?
G.S. 164-10 gives the Division of Legislative Drafting and Codification authority to organize the General Statutes coherently. In 1983, no Chapter 32A existed; the codifier filled that slot with the new act rather than creating a Chapter 32B that left a gap. The Session Laws record what the General Assembly actually passed; the General Statutes is the organized compilation.
Does this opinion still matter for current drafting?
Not for current drafting. Modern North Carolina POAs are drafted under Chapter 32C. The 1984 opinion's significance is historical: it confirms that POAs drafted in the 1983 to 2017 period are not invalidated by the choice between Chapter 32A and Chapter 32B labels.
Source
- Landing page: https://ncdoj.gov/opinions/powers-of-attorney-reference-to-general-statutes-chapter-32a-or-32b/
Citations
- N.C.G.S. Chapter 32A (codified)
- N.C.G.S. Chapter 32B (session-law designation)
- N.C.G.S. § 74-115.1 (prior durable-POA statute)
- N.C.G.S. § 164-10 (codification authority)
- Chapter 626, 1983 Session Laws
Original opinion text
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?
- 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. 164-10, 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