Can a power of attorney still be done if my spouse can’t speak but seems to understand and can respond in limited ways? – North Carolina

Short Answer

Yes—sometimes. In North Carolina, a power of attorney can still be valid if the person has the mental capacity to understand what the document does and can communicate a clear choice, even without speech. The hard part is usually the signing and notarization: if a spouse cannot physically sign, the document may still be signed at the spouse’s direction, but it must be handled carefully so the notary and witnesses can confirm the spouse’s intent.

Understanding the Problem

In North Carolina estate planning, the key question is whether a spouse who cannot speak but appears to understand can still make a valid power of attorney when communication is limited and the spouse cannot physically sign. The decision point is whether the spouse can still show a clear, consistent choice to appoint an agent and understands what authority is being granted, even if that choice is communicated by nodding, blinking, writing, or other limited responses. The related practical issue is whether the spouse can complete the required signing and notarization steps when physical signing is not possible.

Apply the Law

North Carolina generally requires that a power of attorney be executed with proper formalities, and the principal must have capacity at the time of signing. Capacity is not the same as the ability to speak. A person may still have capacity if they can understand the nature of the document and communicate a decision in a reliable way. When the principal cannot physically sign, the signing and notarization must be structured so the notary can confirm the principal’s identity and that the signature was made with the principal’s authorization.

Key Requirements

Capacity at the moment of signing: The spouse must understand, in a basic way, that the document appoints an agent and gives that agent authority to act.
Clear communication of intent: Even without speech, the spouse must be able to communicate “yes” and “no” consistently (for example, by nodding, blinking, squeezing a hand, pointing, or using a communication board).
Proper execution (signing/notarization): The document must be signed and acknowledged in a way that satisfies North Carolina execution and notary requirements, including the notary’s ability to confirm the spouse’s acknowledgment.

What the Statutes Say

N.C. Gen. Stat. § 10B-41 (Notarial certificate for an acknowledgment) – Provides an approved form and baseline requirements for a North Carolina notary’s acknowledgment certificate.
N.C. Gen. Stat. § 47-38 (Acknowledgment by grantor) – Provides a statutory form of acknowledgment commonly used for documents that are acknowledged before a notary.
N.C. Gen. Stat. § 32A-25.1 (Statutory form health care power of attorney) – Shows the typical execution approach for a North Carolina Health Care Power of Attorney, including that the principal signs (or directs another to sign) with witnesses and notary proof.

Analysis

Apply the Rule to the Facts: Here, the spouse is in hospice, appears to understand what is happening, but cannot speak or physically sign. If the spouse can still demonstrate understanding of what a power of attorney does and can communicate a consistent choice to appoint an agent (even nonverbally), the capacity and intent pieces may still be satisfied. The main obstacle is execution: because the spouse cannot physically sign, the signing must be arranged so the spouse can direct the signature and the notary and witnesses can document that the spouse acknowledged the document as the spouse’s act.

Process & Timing

Who signs/authorizes: The spouse (the “principal”) must authorize the power of attorney. Where: Typically at the hospice facility, home, or another location where a North Carolina notary and required witnesses can be physically present. What: The correct power of attorney document (often a financial/durable power of attorney and/or a Health Care Power of Attorney). When: As soon as possible while the spouse can still show capacity and a consistent choice.
Execution meeting the spouse’s limitations: If the spouse cannot sign, the document may be signed at the spouse’s direction (for example, another person signs the spouse’s name while the spouse indicates approval). The notary must be able to complete an acknowledgment, which generally requires the spouse to personally appear before the notary and acknowledge the document as the spouse’s act, even if that acknowledgment is communicated nonverbally.
After signing: Provide copies to the named agent(s) and the institutions that will rely on it (health care providers for a Health Care POA; banks or other entities for a financial POA). If the agent will handle real estate, recording with the Register of Deeds may be needed before a deed can be signed under the power of attorney.

Exceptions & Pitfalls

Capacity can fluctuate: Hospice patients may have good windows and bad windows. Sedating medications, infection, or fatigue can make capacity harder to confirm at the signing.
Notary limitations: If the notary cannot confidently confirm identity and acknowledgment (even through nonverbal communication), the notary may refuse to notarize. Planning for a clear communication method (yes/no signals, communication board) can be critical.
Wrong document for the goal: A financial (durable) power of attorney and a Health Care Power of Attorney do different jobs. A health care document helps with medical decisions; it does not automatically give authority over finances.
Last-minute signing pressure: If the spouse is too weak to participate meaningfully, pushing forward can create a document that is later challenged as not truly authorized.
If a new POA cannot be executed: When capacity or execution requirements cannot be met, the usual alternative is a guardianship case through the Clerk of Superior Court. For more on that scenario, see legal authority to sign for a spouse in hospice who can’t physically sign.

Conclusion

In North Carolina, a spouse who cannot speak may still be able to execute a power of attorney if the spouse has capacity at the time of signing and can communicate a clear, consistent choice to appoint an agent. The biggest hurdle is proper execution when the spouse cannot physically sign, because the notary and witnesses must be able to confirm the spouse’s acknowledgment and intent. The next step is to arrange an on-site signing with a notary and the required witnesses as soon as possible while capacity is still present.

Talk to a Estate Planning Attorney

If a spouse is in hospice and cannot speak or sign, the details of capacity, communication, and proper execution matter. Our firm has experienced attorneys who can help evaluate options and coordinate a signing that fits the situation and timelines. 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.