What happens if the person has good and bad days with memory or awareness—can a power of attorney still be signed and be valid? – North Carolina

Short Answer

Under North Carolina law, a power of attorney can be validly signed on a “good day” if, at the time of signing, the person understands in a basic way what the document is, what property or decisions it covers, and who is being appointed to act. Fluctuating memory or awareness does not automatically require guardianship. However, if the person cannot reach that level of understanding even on good days, a court-ordered guardianship or a limited court-approved transaction may be required instead of a power of attorney.

Understanding the Problem

The narrow question is whether, in North Carolina guardianship matters, a person who has both good and bad days with memory or awareness can still validly sign a power of attorney, particularly one limited to handling a lease instead of broader finances. Families often want authority to sign or manage a lease for a parent who has cognitive changes but still has periods of clarity. The concern is whether those ups and downs mean a court must first find the parent incompetent and appoint a guardian before any power of attorney can work.

Apply the Law

North Carolina focuses on the person’s capacity at the moment of signing the document and tailors court involvement based on how broad and ongoing the needed help is. Guardianship is a last resort, and courts can sometimes approve a single protective transaction instead of full guardianship if ongoing control is not needed.

Key Requirements

Element 1 – Capacity at the time of signing: The person must, at the signing moment, have enough understanding to know the nature and effect of the power of attorney being signed.
Element 2 – Understanding of the specific authority granted: The person must grasp, in a general way, what decisions or property (such as a lease) the agent will handle and that the agent will be able to act in the person’s place.
Element 3 – No existing court finding that removes this authority or requires court action instead: If a court has already found the person incompetent and appointed a guardian, or if the person cannot meet the above capacity threshold even on good days, then court involvement (guardianship or a single protective arrangement) may be necessary for lease decisions.

What the Statutes Say

N.C. Gen. Stat. § 35A-1121 (Single protective arrangement or transaction) – Allows the clerk of superior court to authorize a one-time transaction, such as a lease or other property-related contract, without appointing a full guardian when a basis for guardianship exists.
Chapter 32A (Powers of attorney) – Sets out North Carolina’s rules for financial and health care powers of attorney, including that the principal must be of sound mind when executing the document.

Analysis

Apply the Rule to the Facts: In the facts described, the parent has fluctuating memory or awareness, and the adult child and spouse want authority only to manage a lease, not all finances. If, on a good day, the parent can understand that a power of attorney lets a chosen person sign and manage lease matters on the parent’s behalf, a narrowly drafted financial power of attorney focused on lease decisions can be valid. If the parent cannot reach that level of understanding even at best, the safer approach is a limited court proceeding where the clerk authorizes a specific lease-related transaction or appoints a guardian with authority tailored to housing decisions.

Process & Timing

Who files: Typically the adult needing help signs the power of attorney; if capacity is doubtful, interested family members may instead file for relief. Where: For a power of attorney, signing usually occurs with a North Carolina notary; for court involvement, filings go to the Clerk of Superior Court in the county where the adult resides. What: Either a carefully drafted financial power of attorney limited to leasing authority, or a petition under the guardianship statutes (which can include a request for a single protective arrangement under N.C. Gen. Stat. § 35A-1121). When: As soon as it becomes clear that lease decisions must be made and the person is having fluctuating capacity.
For a power of attorney, the notary and any witnesses confirm the signer appears to understand the document and is acting voluntarily; this often happens in a single meeting. For a guardianship or single-transaction petition, the clerk sets a hearing date, usually within weeks, and may require medical evidence of capacity.
After signing, third parties (like a landlord) receive a copy of the power of attorney and may rely on it. If the court is involved instead, the clerk issues an order either appointing a guardian with defined powers or authorizing a specific lease transaction, and that order is then provided to the landlord or housing provider.

Exceptions & Pitfalls

If a court has already declared the person incompetent and appointed a guardian of the estate or general guardian, the person usually cannot create a new financial power of attorney; the guardian or the court must handle lease matters.
If the parent signs on a “bad day” when understanding is clearly lacking, the power of attorney may be vulnerable to challenge later by family members, the parent, or third parties, especially if the transaction seems unfair or one-sided.
Failing to tailor the power of attorney to lease-related powers can cause landlords or housing providers to hesitate or refuse to honor it, or can accidentally give the agent much broader financial control than intended.
Ignoring signs of undue influence—such as one relative isolating the parent or rushing a signing—can undermine the document and may prompt the clerk to favor guardianship or court supervision instead.

Conclusion

For North Carolina guardianship matters, a person with good and bad days can still sign a valid power of attorney if, at the moment of signing, that person understands the nature of the document and the lease-related authority it grants. When that level of understanding exists, a narrowly drafted financial power of attorney focused on leasing can avoid full guardianship. If the person cannot meet that capacity standard even on good days, the next step is to petition the Clerk of Superior Court for guardianship or for a single protective arrangement to authorize the needed lease transaction.

Talk to a Guardianship Attorney

If a loved one in North Carolina has both good and bad days with memory or awareness and lease decisions need to be made, our firm has experienced attorneys who can help explain whether a power of attorney, a limited court order, or guardianship is the safest route. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.