Dec212025
Estate Planning Q&A Series

What happens if my parent is not clearly of sound mind during the power of attorney signing? – North Carolina

Short Answer

In North Carolina, a financial power of attorney generally must be signed by the parent (the “principal”) while the parent has enough mental capacity to understand what the document does and to knowingly authorize someone else to act. If the parent is not clearly of sound mind at signing, the document can be rejected by a notary or later challenged as invalid. If capacity is doubtful, families often need to pause the signing and consider other legal options, such as court guardianship through the Clerk of Superior Court.

Understanding the Problem

In North Carolina estate planning, a common question is whether a family member can complete a financial power of attorney when an ill parent cannot clearly verbalize instructions during the signing. The decision point is whether the parent can understand the power of attorney and can knowingly sign it (or knowingly direct another person to sign) in the notary’s presence at the time of notarization. If that understanding is not clear in the moment, the signing may not be done correctly, and the document may not work when it is needed.

Apply the Law

Under North Carolina law, a power of attorney is a document where one person (the principal) grants authority to another person (the agent or attorney-in-fact) to act for the principal. For the document to be dependable, the principal must have sufficient capacity at signing, and the execution must match the formalities required for notarization and (in some situations) recording. Notaries are required to complete an acknowledgment certificate that reflects what happened: that the signer personally appeared and acknowledged signing the document. If the signer cannot make a meaningful acknowledgment, the notary should not complete a certificate that would be false.

Key Requirements

  • Capacity at the time of signing: The parent must be able to understand, in a basic way, that the document gives an agent authority over the parent’s finances and property and must be able to knowingly grant that authority.
  • Proper execution and notarized acknowledgment: The parent must personally appear before the notary and acknowledge signing. If the parent signs by directing another person to sign, the execution must still reflect the parent’s knowing direction and the notary must be comfortable that the acknowledgment is truthful.
  • Correct record/filing when real estate is involved: If the agent will sign documents affecting real property, the power of attorney (or a certified copy) usually needs to be recorded with the Register of Deeds in the right county before the agent uses it for a real estate transfer.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe an ill parent who may not be able to clearly verbalize instructions, and a notary who is unsure what must be said or confirmed for a valid notarization. That scenario triggers two execution risks: (1) whether the parent has enough capacity at that moment to knowingly authorize the power of attorney, and (2) whether the notary can truthfully certify an acknowledgment (personal appearance plus an acknowledgment that the parent signed). If the parent cannot demonstrate understanding or cannot acknowledge the signature, the notary should not proceed, because the notary cannot complete a certificate that implies an acknowledgment occurred when it did not.

Process & Timing

  1. Who files: The parent (if capable) signs the power of attorney; otherwise no one can “make” a power of attorney for the parent. Where: Signing and notarization occur wherever the parent can personally appear before a notary in North Carolina. What: A financial power of attorney document plus a notarial acknowledgment certificate. When: Only during a time when the parent has sufficient capacity to understand the document and can acknowledge signing.
  2. If real estate authority is expected: Record the power of attorney (or a certified copy) with the Register of Deeds in the county where the parent is domiciled or where the property lies before the agent signs a deed or other transfer instrument using that authority.
  3. If capacity is not clear enough to sign: Consider a guardianship route. A verified petition for adjudication of incompetence can be filed with the Clerk of Superior Court, and (if the court finds incompetence) a guardian may be appointed to handle financial decisions through court supervision.

Exceptions & Pitfalls

  • “Bad day” vs. no capacity: Some medical conditions cause fluctuating clarity. A signing may be possible during a lucid period, but it should not happen during confusion, heavy sedation, or active delirium.
  • Trying to “help” by speaking for the parent: If others answer questions for the parent, coach the parent, or pressure the parent, the power of attorney becomes easier to challenge later and may put the notary in an impossible position.
  • Improper notarization: A notary should not notarize if the acknowledgment cannot be truthfully completed. A notarization that does not match what actually happened can cause banks, title companies, and others to reject the document and can create litigation risk.
  • Confusing “power of attorney” with “agent signing”: A family member cannot sign the parent’s new power of attorney as “agent” unless the parent already granted that authority in another valid document. A power of attorney must come from the parent’s valid act.

Conclusion

In North Carolina, if a parent is not clearly of sound mind during a financial power of attorney signing, the document may be invalid or unusable because the parent must have sufficient capacity and must be able to personally appear and acknowledge signing before a notary. If capacity is doubtful, the safest course is to stop the signing and evaluate alternatives. A common next step is to file a verified incompetency petition with the Clerk of Superior Court so a guardian can be appointed if needed.

Talk to a Estate Planning Attorney

If a family is dealing with an ill parent whose capacity is uncertain during a power of attorney signing, experienced attorneys can help clarify the legal requirements, coordinate a proper signing when appropriate, and explain guardianship options when a power of attorney is no longer possible. 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: Estate Planning Q&A Series

Author: jpierce

Attorney Jared Pierce is the founder of Pierce Law Group in Raleigh, North Carolina, a firm he established with a dedicated focus on probate administration and estate planning across North Carolina. Born and raised in the Republic of South Africa, Jared moved to Durham with his family in 2001, bringing with him a rich cultural background and a distinctive accent that often serves as a conversation starter.