Feb192026
Guardianship Q&A Series

What kind of proof do I need to show that my spouse is mentally competent enough to approve a power of attorney or settlement? – North Carolina

Short Answer

In North Carolina, the “proof” usually is not a single magic form. What matters is whether the spouse has enough mental capacity at the time of signing (or approving) to understand what the document does and to communicate a choice. In practice, the most helpful proof is a well-documented signing process (notary/lawyer observations, clear communication methods) and, when capacity could be questioned, a short medical statement describing the spouse’s ability to understand and make decisions.

Understanding the Problem

In North Carolina guardianship matters, the key question is often: can a spouse who is seriously ill and in hospice still validly approve a power of attorney or a settlement when communication is limited and the spouse cannot physically sign? The decision point is mental capacity at the time approval is given, not the diagnosis or the fact that hospice care is involved. The practical issue is identifying what information and documentation will satisfy the people who must rely on the decision (such as a notary, a lawyer, an insurance adjuster, or a court) that the spouse understood the decision and agreed to it.

Apply the Law

North Carolina law generally focuses on capacity at the moment the document is executed or the agreement is approved. Capacity is decision-specific: a person may be too impaired for some complex decisions but still capable of understanding and approving a particular document if the person can understand the nature of the act, the general consequences, and can communicate assent in a reliable way. If capacity is genuinely lacking (or is likely to be challenged), the safer path may be a court-supervised process through the Clerk of Superior Court, including guardianship or a limited protective order for a single transaction.

Key Requirements

  • Capacity at the time of approval: The spouse must be able to understand, in a basic way, what the power of attorney or settlement is and what it authorizes or resolves.
  • Ability to communicate a choice: Even if the spouse cannot speak or sign, there must be a reliable way to communicate “yes” or “no” (for example, consistent head nods, eye-gaze, or another method that can be observed and documented).
  • Proper execution and authentication: For a power of attorney or other signed document, the signing/acknowledgment process must be done correctly (often involving a notary), and any special execution method must be handled carefully so third parties will accept it.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe a spouse in hospice who appears to understand what is happening but cannot speak or physically sign. That points to a capacity-and-communication problem, not automatically an incompetency problem. The strongest “proof” will usually be (1) a clear method the spouse uses to communicate assent, (2) a careful signing/acknowledgment process observed by a neutral professional (often a notary and/or attorney), and (3) if there is any foreseeable dispute, a short medical statement that the spouse can understand and make decisions despite the illness.

Process & Timing

  1. Who prepares and coordinates: Typically the spouse’s attorney (or the attorney handling the settlement) coordinates with a notary and the medical care team. Where: Often at the hospice facility or residence; if court authority is needed, filings go to the Clerk of Superior Court in the county where the spouse resides or is present. What: The power of attorney or settlement documents, plus a capacity-focused note or letter (when appropriate) and a written description of the communication method used to show approval.
  2. Document the communication: Before any signing, the decision-maker should be asked simple, direct questions that show understanding (what the document is, who will act, what the decision accomplishes). The notary/lawyer should document observations about alertness, orientation, and consistent responses. If the spouse cannot sign, the team should discuss whether an alternative execution method is available and acceptable for the specific document and institution involved.
  3. If capacity is doubtful or the stakes are high: Consider a court-supervised route. A guardianship petition (or, in some cases, a request for a single protective arrangement) can provide authority that banks, insurers, and other parties are more likely to accept when capacity is contested.

Exceptions & Pitfalls

  • “Hospice” is not the legal test: A serious diagnosis does not automatically mean lack of capacity. The risk is that others may assume incapacity unless the approval process is well documented.
  • Inability to speak or sign is a separate issue: A spouse can be mentally capable but still unable to complete formalities. If the document requires notarization, the notary must be comfortable that the spouse is acknowledging the act and communicating assent in a reliable way.
  • Over-reliance on a generic doctor’s note: A short medical statement helps most when it addresses functional abilities (understanding, decision-making, communication) and is close in time to the signing. A vague note that someone is “competent” may not resolve disputes.
  • Third-party rejection: Even a valid document can be delayed if a bank, insurer, or facility refuses to accept it due to capacity concerns. Planning for acceptance (clear execution, clean paperwork, and a backup court option) reduces last-minute crises.
  • When court involvement is required: If the spouse truly cannot understand or communicate a decision, trying to “push through” a power of attorney can create a later challenge. In that situation, the proper route is usually through the Clerk of Superior Court under North Carolina’s incompetency/protective proceeding statutes.

For additional background on capacity and options when someone cannot sign, see what it means to be incapacitated for a power of attorney or guardianship and options when someone can no longer sign documents.

Conclusion

In North Carolina, the best proof of mental competence to approve a power of attorney or settlement is evidence that, at the time of approval, the spouse understood what the document did and could communicate a clear choice—even if the spouse could not speak or physically sign. Strong proof usually combines a careful notarized execution process with clear documentation of the communication method and, when needed, a brief medical statement focused on decision-making ability. If capacity is doubtful, the next step is to file a petition with the Clerk of Superior Court for court authority.

Talk to a Guardianship Attorney

If a spouse is in hospice and the question is whether there is enough capacity to approve a power of attorney or settlement (especially when the spouse cannot speak or sign), our firm has experienced attorneys who can help explain options, coordinate documentation, and move quickly when time is short. 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.

Category: Guardianship Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.