Can we use medical evaluations retroactively to show incompetence at signing? – North Carolina

Short Answer

Yes. In North Carolina, you may use medical records and later medical opinions to help show the signer lacked capacity at the moment a durable power of attorney (POA) was executed. The court will weigh all evidence—medical, notarization, and lay observations—to decide whether the principal understood the nature and consequences of signing. To invalidate a POA, you file in Superior Court; to police an agent’s conduct or seek an accounting, you file with the Clerk of Superior Court.

Understanding the Problem

In North Carolina estate planning, can you use medical evaluations performed after signing to show a relative lacked capacity when they signed a durable power of attorney? Here, the relative has dementia, named an agent, and the agent now excludes other family members from the relative’s affairs.

Apply the Law

Under North Carolina law, capacity is judged at the time the POA is executed. A diagnosis (like dementia) does not automatically establish legal incompetence on that date. Courts often consider medical records and physician opinions created before and after the signing if they reliably relate back to the signing date, along with lay testimony from people who observed the signer. A POA must be signed and acknowledged before a notary, but notarization does not prove capacity. If challenging the validity of the POA for lack of capacity or undue influence, you proceed in Superior Court. If addressing an agent’s current conduct, you may seek relief before the Clerk of Superior Court.

Key Requirements

• Capacity at signing: The principal must understand the nature and consequences of making the POA when they sign; later decline alone is not dispositive.
• Evidence that relates back: Medical records and retrospective physician opinions are admissible if tied to the signer’s condition on the execution date; contemporaneous lay observations also matter.
• Proper forum: To set aside a POA for lack of capacity or undue influence, file a civil action in Superior Court; for an accounting, suspension, or limits on an agent, file a petition with the Clerk of Superior Court.
• Execution formalities: A North Carolina POA must be signed and acknowledged before a notary; formal execution does not cure lack of capacity.
• Remedies and oversight: Courts can order an accounting, suspend/remove the agent, void improper acts, or impose other relief; if a guardian is appointed, the agent becomes accountable to the guardian.

What the Statutes Say

• N.C. Gen. Stat. § 32C-1-105 (Execution of power of attorney) – POA must be signed and acknowledged before a notary.
• N.C. Gen. Stat. § 32C-1-116 (Judicial relief) – Clerk proceedings for accountings/suspension; actions to set aside for lack of capacity or undue influence proceed in Superior Court.
• N.C. Gen. Stat. § 32C-1-117 (Agent’s liability; remedies) – Court may order accounting, suspend/remove agent, void acts, and grant other appropriate relief.
• N.C. Gen. Stat. § 32C-1-108 (Relation to court-appointed fiduciary) – An agent is accountable to a subsequently appointed guardian or fiduciary.

Analysis

Apply the Rule to the Facts: Your relative’s dementia diagnosis does not, by itself, prove they lacked capacity when they signed the POA. Medical records and doctor opinions created after the signing can be persuasive if they explain the relative’s cognitive state on the execution date. Lay testimony from those present at the signing can support (or undermine) capacity. If the agent appears to be excluding family and misusing authority, you can promptly seek an accounting and interim limits on the agent while any broader validity challenge is pursued.

Process & Timing

1. Who files: Any “interested person.” Where: Clerk of Superior Court in a North Carolina county where the principal resides, an agent resides, or property is located. What: Verified petition for judicial relief under Chapter 32C (seek accounting; request to limit/suspend agent). When: File as soon as misuse is suspected; early relief preserves records and assets.
2. If you seek to invalidate the POA for lack of capacity or undue influence: file a civil action in Superior Court. Request temporary restraints if needed and support the filing with medical records, a physician’s retrospective opinion tied to the signing date, and witness affidavits.
3. If a guardian is appointed: the agent becomes accountable to the guardian; the guardian may move to revoke or amend the POA and request further court orders overseeing the agent’s acts.

Exceptions & Pitfalls

• A diagnosis alone is not incompetence; capacity can fluctuate. Courts look for what the signer understood at the exact time of execution.
• Retrospective medical opinions carry weight only if they credibly relate the condition back to the signing date; unauthenticated records may be excluded without proper foundation.
• Notarization and recording of a POA show proper execution, not capacity; they do not shield an agent from review.
• Use the correct forum: the Clerk can order accountings and interim relief; only Superior Court can set aside a POA for lack of capacity or undue influence.
• Move quickly to preserve bank statements and communications; delays can make proof harder.

Talk to a Estate Planning Attorney

If you’re dealing with questions about capacity at signing or an agent’s overreach under a power of attorney, our firm has experienced attorneys who can help you understand your options 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.