What happens if there is no medical or financial power of attorney and the hospital needs someone to make decisions? – North Carolina

Short Answer

In North Carolina, if an adult patient cannot make decisions and there is no valid medical or financial power of attorney, family members usually do not automatically have legal authority to consent to treatment or manage money. Hospitals may provide necessary emergency care, but for ongoing medical decisions, discharge planning, placement, and access to finances, the usual legal fix is a court process in front of the Clerk of Superior Court to determine incompetency and appoint a guardian. When the situation is urgent, an emergency (temporary) guardianship may be requested first, followed by a permanent guardianship case.

Understanding the Problem

In North Carolina guardianship cases, the key question is what happens when an adult in the hospital has been found unable to make decisions and there is no medical power of attorney or financial power of attorney naming a decision-maker. The decision point is whether someone has legal authority to act for the hospitalized adult for medical consent, discharge and placement decisions, and access to bills, insurance, and other financial tasks. When no agent exists, the issue often becomes whether a court-appointed guardian is needed quickly so the hospital has a legally recognized person to work with.

Apply the Law

North Carolina generally requires legal authority before another person can make non-emergency medical decisions or handle an incapacitated adult’s finances. When there is no power of attorney, the usual path is (1) a court proceeding to have the adult adjudicated incompetent and (2) appointment of a guardian (guardian of the person for health/placement decisions, guardian of the estate for finances, or a general guardian for both). These matters are typically handled through the Office of the Clerk of Superior Court in the county where the adult resides or is present, depending on the situation and local practice.

Key Requirements

No valid decision-maker is in place: There is no effective healthcare power of attorney or durable financial power of attorney that the hospital and other institutions can rely on.
Incapacity/incompetence must be addressed through the court: To give someone clear authority to make ongoing decisions, North Carolina uses an incompetency process and then a guardianship appointment through the Clerk of Superior Court.
The court order defines the guardian’s authority: The guardian’s powers depend on the type of guardianship (person, estate, or general) and the limits stated in the clerk’s order and letters of guardianship.

What the Statutes Say

N.C. Gen. Stat. § 35A-1105 (Petition before clerk) – Allows a verified petition to start an adult incompetency case with the Clerk of Superior Court.
N.C. Gen. Stat. § 35A-1121 (Single protective arrangement/transaction) – In some situations, the clerk can authorize a limited, one-time protective action without appointing a full guardian.
N.C. Gen. Stat. § 35A-1208 (Authority for health care decisions) – Addresses how a guardian of the person or general guardian fits into health care decision authority when an agent under a health care power of attorney exists.

Analysis

Apply the Rule to the Facts: Here, an adult sibling is hospitalized and has been deemed unable to make decisions, and there is no medical or financial power of attorney. That usually means the hospital may not be able to treat the sibling’s brother or sister as the legal decision-maker for ongoing consent, discharge planning, or placement decisions. Because the need is urgent, an emergency guardianship request is commonly used to bridge the gap while the longer incompetency and permanent guardianship process moves forward.

On the financial side, the lack of a durable power of attorney often creates immediate practical problems: access to accounts, paying bills, dealing with insurance paperwork, and signing facility admission contracts may be blocked without legal authority. A guardianship of the estate (or a general guardianship) is typically the court tool used to create that authority, but the clerk can also sometimes approve a limited, specific transaction when a full guardianship is more than what is needed.

For medical decisions, hospitals can still provide necessary emergency care when delay would put the patient at risk, but ongoing decisions (especially those involving discharge location, long-term placement, and consent for non-emergency procedures) often require a legally authorized person. A guardian of the person (or general guardian) is the role designed to handle care, custody, and control decisions for an incompetent adult, subject to the limits in the court’s order.

Process & Timing

Who files: A family member (such as a sibling) or another interested person. Where: Office of the Clerk of Superior Court in the appropriate North Carolina county. What: A verified incompetency petition and a request for emergency/temporary guardianship if immediate authority is needed. When: As soon as it becomes clear the hospital needs a legally authorized decision-maker and the patient cannot sign a valid power of attorney.
Emergency authority (if granted): The clerk can issue an order appointing a temporary/emergency guardian with limited powers tailored to the urgent needs (for example, medical consent and placement decisions). The order and “letters” are what hospitals and facilities usually need to recognize authority.
Permanent case continues: The incompetency and guardianship case proceeds toward a longer-term appointment (guardian of the person, guardian of the estate, or general guardian), with required notices and a hearing process. Timing can vary by county and by how quickly medical documentation and service can be completed.

Exceptions & Pitfalls

Confusing “next of kin” with legal authority: Close relatives are often involved in care discussions, but that does not always equal legal power to consent or sign binding paperwork when there is no power of attorney.
Seeking broader powers than necessary: In some situations, a limited court-approved protective arrangement or a narrowly tailored temporary order may solve the immediate problem without creating a larger guardianship than needed.
Not matching the guardianship type to the problem: Medical and placement decisions usually point toward a guardian of the person; bill-paying and asset management point toward a guardian of the estate; some cases require both (general guardian).
Documentation and notice delays: Emergency requests still require clear medical information and proper filings. Delays often come from incomplete paperwork, difficulty locating interested parties for notice, or uncertainty about the correct county for filing.

Conclusion

In North Carolina, when an adult patient cannot make decisions and there is no medical or financial power of attorney, the hospital often cannot rely on family members as the legal decision-maker for ongoing care, discharge, placement, or finances. The usual solution is to file an incompetency petition with the Clerk of Superior Court and request emergency (temporary) guardianship if immediate authority is needed, then proceed to permanent guardianship. The next step is to file the emergency guardianship request with the clerk as soon as the hospital’s timeline requires decisions.

Talk to a Guardianship Attorney

If a hospitalized adult has no medical or financial power of attorney and the hospital needs someone to make decisions, our firm has experienced attorneys who can help explain options, prepare the filings, and move quickly on emergency guardianship when appropriate. 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.