What can I do if my sibling used a power of attorney to change my parent’s assets to benefit themselves before my parent died? – North Carolina

Short Answer

In North Carolina, a power of attorney agent (attorney-in-fact) must act for the parent’s benefit and within the authority granted in the document. If a sibling used a power of attorney to move assets to themselves—especially if the parent lacked capacity when the power of attorney was signed or if the agent lacked clear authority to make gifts—there may be options to demand records, seek a court order for an accounting, and pursue claims to unwind transfers or recover the value for the estate. The right approach usually depends on what was changed (deed, bank account, beneficiary designation) and whether the estate has an appointed personal representative.

Understanding the Problem

In North Carolina probate disputes, a common question is whether a sibling, acting as an agent under a parent’s power of attorney, can change the parent’s assets in a way that benefits the agent before the parent dies. The decision point is whether the agent’s actions were authorized and done for the parent’s benefit, or whether the actions were self-dealing tied to lack of capacity, undue influence, or misuse of the power of attorney. The answer often turns on what the power of attorney actually allowed, what the parent’s mental condition was at the time of signing, and what transactions occurred while the parent was living.

Apply the Law

North Carolina treats a power of attorney agent as a fiduciary. That means the agent must act in the principal’s best interests and stay within the powers granted by the power of attorney document. When an agent uses the power of attorney to transfer the principal’s property to the agent (or otherwise enrich the agent), the usual legal pressure points are (1) whether the power of attorney was validly signed (capacity and proper execution), (2) whether the document gave clear authority for gifting or changing ownership/beneficiary arrangements, and (3) whether the agent can document that the transactions were proper and for the parent’s benefit. Disputes are commonly handled in the North Carolina court system through proceedings connected to the estate (once opened) and related civil claims seeking return of property or the value of property.

Key Requirements

Valid authority (a real power of attorney): The parent must have had legal capacity to sign the power of attorney, and it must have been properly executed. If the parent had dementia severe enough to prevent understanding what was being signed, the power of attorney itself may be challenged.
Scope of powers (what the document allowed): Even a valid power of attorney does not automatically allow self-benefiting transfers. The document’s wording matters, especially for gifts, changing ownership, or moving assets into the agent’s name.
Fiduciary conduct (best interests and documentation): The agent should be able to show records and a legitimate reason tied to the parent’s interests. Missing records, unexplained transfers, or transactions that mainly benefit the agent can support claims for breach of fiduciary duty and equitable remedies (like constructive trust) to restore assets.

What the Statutes Say

N.C. Gen. Stat. § 47-43 (Acknowledgment when an instrument is executed by an agent under a power of attorney) – Provides a statutory form of notarial acknowledgment commonly used when an agent signs and records instruments (often relevant in deed-transfer disputes).
N.C. Gen. Stat. § 1-22 (Death before limitation expires; action by personal representative) – Addresses timing when a person with a claim dies before the limitation period runs and a personal representative brings the surviving claim.

Many power-of-attorney-specific duties and remedies are addressed in Chapter 32C of the North Carolina General Statutes. Because statute numbering and the exact applicable sections can vary based on the sub-issue (accounting, standing to sue, and remedies), a North Carolina probate attorney typically confirms the precise Chapter 32C sections that match the transaction type and requested relief before filing.

Analysis

Apply the Rule to the Facts: Here, the parent is deceased, and a sibling previously acted under a power of attorney. The key factual issues are whether the parent had capacity when signing (given the dementia concern), whether the power of attorney granted authority for the specific asset changes, and whether the sibling’s transactions primarily benefited the sibling rather than the parent. If the power of attorney was signed when the parent lacked capacity, or if the sibling made gifts or ownership changes without clear authority, those facts can support a court request to unwind transfers or recover the value for the estate.

Process & Timing

Who files: Often the estate’s personal representative (executor/administrator). In some situations, an heir may push the personal representative to act or seek court involvement if the personal representative will not. Where: Typically the Clerk of Superior Court for the county where the estate is administered, with related civil claims filed in the appropriate North Carolina court division depending on the relief requested. What: A request for estate administration (to appoint a personal representative) plus a targeted petition/complaint seeking records, an accounting, and recovery of assets or their value. When: As soon as the suspicious transfers are identified; waiting can make tracing assets harder and can create statute-of-limitation defenses.
Information-gathering step: Collect the power of attorney document, deeds, account statements, beneficiary forms, and transaction history. In many cases, the dispute becomes clearer once the agent is required to explain and document each transfer.
Recovery step: If the evidence supports it, the case may seek remedies such as return of property to the estate, a constructive trust over property now held by the sibling, or a money judgment for the value taken. If real estate was transferred, the recorded deed and the notarial/recording details often become central evidence.

Exceptions & Pitfalls

The power of attorney may have allowed broad gifting or transfers: Some documents grant very broad authority. Even then, the agent’s fiduciary duties and the surrounding facts (capacity, undue influence, secrecy, lack of documentation) still matter.
Not everything is “probate property”: Some assets pass by beneficiary designation or joint ownership. A transfer that moved an asset out of the estate may require a different recovery theory than a simple probate accounting.
Proof problems: Capacity and undue influence disputes often require medical records, witness testimony, and a clear timeline. Missing documents and informal family arrangements can weaken a claim if not addressed early.
Standing and the right plaintiff: After death, the estate’s personal representative is often the proper party to pursue recovery for harm done to the parent. If the wrong party files, the case can be delayed or dismissed.

For more context on related North Carolina disputes, see what kind of lawsuit can be filed when undue influence or financial exploitation is suspected, and what can I do if changes were made to a trust or beneficiary plan.

Conclusion

In North Carolina, a sibling acting under a power of attorney must stay within the document’s authority and act in the parent’s best interests. If the power of attorney was signed when the parent lacked capacity, or if the agent used it to transfer assets to themselves without clear authority, the estate may be able to demand records, seek an accounting, and pursue court relief to restore assets or recover their value. A practical next step is to open the estate and have a personal representative file the appropriate recovery action as soon as the suspicious transfers are identified.

Talk to a Probate Attorney

If a sibling used a power of attorney to change a parent’s assets before death and the changes appear to benefit the agent, our firm has experienced attorneys who can help evaluate the power of attorney, identify what was transferred, and explain the options and timelines for recovery. 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.