Feb192026
Guardianship Q&A Series

What kind of proof do I need to show that my spouse can’t sign or make decisions right now? – North Carolina

Short Answer

In North Carolina, the proof usually needs to show that a spouse lacks enough capacity to manage personal affairs or property, or to communicate important decisions, so the Clerk of Superior Court can decide whether an incompetency finding (and a guardian) is necessary. The most common proof includes recent medical information (often a physician’s statement or evaluation), specific examples of impaired decision-making, and testimony from people who have observed the decline. The clerk can also order a formal evaluation if the available medical information is not current or not detailed enough.

Understanding the Problem

In North Carolina guardianship, the decision point is whether a spouse currently has enough mental capacity to understand and sign legal documents or make and communicate meaningful decisions. When a spouse is in hospice and no power of attorney was signed earlier, the question becomes what proof is needed for the Clerk of Superior Court to treat the spouse as unable to handle decision-making and to consider a court-ordered substitute decision-maker. The focus is on present ability, not past ability, and on functional limits that affect real choices about care, safety, and finances.

Apply the Law

North Carolina uses a court process (handled in front of the Clerk of Superior Court) to decide whether an adult is “incompetent” for guardianship purposes and, if so, what type of guardian is needed. The clerk considers evidence about the person’s current capacity and can require additional evaluation if needed. The goal is to match the court order to the person’s actual limitations, including whether a limited guardianship is enough instead of a broad one.

Key Requirements

  • Functional incapacity right now: Proof should address whether the spouse can understand information, appreciate consequences, and make or communicate decisions about personal needs or finances at the present time.
  • Reliable, recent support (often medical): Evidence is stronger when it comes from recent clinical observations (for example, hospice or treating providers) and explains how the condition affects decision-making, not just the diagnosis.
  • Specific examples tied to real tasks: The clerk generally needs concrete facts (confusion about identity, inability to follow simple choices, inability to manage medications, inability to understand money or bills), not conclusions like “cannot sign.”

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the spouse is in hospice, cannot sign legal documents, and no power of attorney exists. The most persuasive proof will connect the hospice condition to specific decision-making limits (for example, inability to understand what a document does, inability to communicate consistent choices, or inability to manage basic personal or financial decisions). If the available medical information is brief or outdated, the clerk may require more current detail or order an evaluation before deciding whether a guardian is needed and whether a limited guardianship could address only the areas where capacity is missing.

Process & Timing

  1. Who files: typically the spouse or another interested person. Where: the Office of the Clerk of Superior Court in the county where the spouse resides in North Carolina. What: a verified petition to adjudicate incompetence and (often at the same time) an application to appoint a guardian. When: as soon as decision-making authority is needed and capacity is already impaired.
  2. Evidence gathering: obtain recent statements or records from treating providers (often hospice), and prepare witness information from people who have observed day-to-day functioning. Evidence is most useful when it describes what the spouse can and cannot do, and when those observations occurred.
  3. Hearing and order: the clerk holds a hearing, receives evidence, and decides whether to adjudicate incompetence and what type of guardianship is appropriate (including limited guardianship). If the clerk finds the current information is not enough, the clerk can require additional evaluation before making final decisions.

Exceptions & Pitfalls

  • Diagnosis alone is not the same as incapacity: A label (for example, dementia, delirium, terminal illness) helps, but the clerk usually needs proof of how the condition affects understanding and decision-making.
  • “Good days” and fluctuating capacity: Hospice patients may have periods of lucidity. If capacity fluctuates, evidence should be specific about dates, times, and what the spouse could or could not understand or communicate.
  • Overbroad requests: Asking for full control over everything can backfire if the evidence supports only a narrower need. North Carolina allows limited guardianship when only certain decisions require help.
  • Relying on informal family agreement: Hospitals, banks, and other institutions often will not accept “family consent” without legal authority. Without a power of attorney, a court order may be required for certain decisions.
  • Confusing guardianship with other court roles: In some court cases, a guardian ad litem may be used for representation in litigation, but that is different from a Chapter 35A guardianship that creates ongoing authority over personal or financial decisions.

Conclusion

In North Carolina, proof that a spouse cannot sign or make decisions usually means evidence showing current, functional incapacity—often supported by recent medical information and specific examples of impaired understanding or communication—so the Clerk of Superior Court can decide whether an incompetency finding and a guardian are necessary. The clerk can tailor the result to the actual need, including limited guardianship. The next step is to file a verified incompetency petition with the Clerk of Superior Court in the spouse’s county as soon as decision-making authority is needed.

Talk to a Guardianship Attorney

If a spouse is in hospice and can no longer sign documents and no power of attorney is in place, a guardianship case may be the fastest way to get clear legal authority for care and financial decisions. Our firm has experienced attorneys who can help explain what proof the clerk will want to see, how to prepare for the hearing, and what timelines to expect. 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.