Jan212026
Guardianship Q&A Series

Can someone using a power of attorney legally push for divorce mediation on behalf of a spouse who was declared incompetent? – North Carolina

Short Answer

In North Carolina, an agent acting under a durable power of attorney can generally participate in (and push for) mediation on behalf of an incompetent spouse in many Chapter 50 family-law cases, as long as the power of attorney gives the agent authority to sue and defend civil actions. However, an agent cannot start (commence) an action for absolute divorce on behalf of an incompetent spouse. If the power of attorney is disputed or the spouse’s capacity at signing is questioned, the court may require a guardian or guardian ad litem and may scrutinize whether mediation decisions truly protect the incompetent spouse’s interests.

Understanding the Problem

In North Carolina, can an adult relative acting under a durable power of attorney step into a spouse’s shoes and push a divorce case toward mediation after the spouse has been declared incompetent? The practical issue is whether the agent has legal authority to participate in divorce-related mediation and make litigation decisions for the impaired spouse, especially when the other spouse claims the power of attorney may not reflect the impaired spouse’s true wishes.

Apply the Law

North Carolina law allows certain representatives to act for an incompetent spouse in many family-law actions under Chapter 50, including participating in mediation and settlement. The representative can be (1) a properly authorized agent under a durable power of attorney, (2) a court-appointed guardian, or (3) a guardian ad litem appointed in the lawsuit. A key limit applies: only a competent spouse may start an action for absolute divorce, even though a representative may handle many other Chapter 50 actions and may defend an absolute divorce case.

Key Requirements

  • Proper authority under the power of attorney: The agent must be “duly appointed” under a durable power of attorney and the document must give the agent power to sue and defend civil actions for the principal.
  • The case must be a Chapter 50 matter where representation is allowed: North Carolina permits a representative to commence, defend, maintain, arbitrate, mediate, or settle many Chapter 50 actions for an incompetent spouse, but not to commence an absolute divorce action for the incompetent spouse.
  • Protection of the incompetent spouse’s interests: If capacity, undue influence, or conflicts are raised, the court can require a guardian ad litem or guardianship involvement and can limit or supervise decisions made in mediation.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe dementia-like symptoms, a durable power of attorney naming an adult relative, and a dispute about whether the document reflects the impaired spouse’s true wishes. Under North Carolina law, if the spouse has been declared incompetent and the durable power of attorney is valid and includes authority to sue and defend civil actions, the agent can generally participate in and advocate for mediation in Chapter 50 matters on the spouse’s behalf. But the agent cannot initiate an absolute divorce for the incompetent spouse, and a court may require a guardian ad litem or guardianship oversight if there is a serious dispute about capacity at signing, undue influence, or whether the agent’s position aligns with the incompetent spouse’s best interests.

Process & Timing

  1. Who files: In a disputed situation, a spouse, family member, or other interested person may file an incompetency petition. Where: The Clerk of Superior Court (in the county where the incompetency/guardianship venue is proper). What: A verified petition to adjudicate incompetence and, if needed, to appoint a guardian. When: As soon as capacity concerns affect litigation decisions or the validity of documents.
  2. Representation in the family case: If a Chapter 50 case is pending (or about to be filed by the competent spouse), the court may require a guardian ad litem for the incompetent spouse if there is no clearly authorized agent or if the agent’s authority is challenged.
  3. Mediation participation: Once a proper representative is recognized (agent/guardian/guardian ad litem), that representative can attend mediation sessions and negotiate within the scope the court allows, with any settlement typically needing to be in writing and signed by the authorized representative.

Exceptions & Pitfalls

  • Absolute divorce cannot be started by the agent for the incompetent spouse: Even with a durable power of attorney, North Carolina law limits who can commence an absolute divorce action.
  • Power of attorney validity can be attacked: If the spouse lacked capacity when signing, or if undue influence is alleged, the agent’s authority to drive mediation may be rejected or narrowed until the court resolves the issue.
  • Conflicts of interest: If the agent is also a potential beneficiary or has a personal stake in the outcome, the court may be more likely to appoint a guardian ad litem or require guardianship supervision before approving any settlement positions.
  • Mediation pressure vs. protected decision-making: “Pushing” for mediation is not the same as having authority to agree to terms. A representative must act within the legal authority granted and in a way that protects the incompetent spouse’s interests.

Conclusion

In North Carolina, a properly authorized agent under a durable power of attorney may generally participate in and advocate for mediation in many Chapter 50 family-law matters on behalf of an incompetent spouse, but the agent cannot commence an absolute divorce for the incompetent spouse. If the power of attorney is disputed or capacity at signing is questioned, the court may require a guardian or guardian ad litem before mediation decisions carry weight. A practical next step is to file a verified incompetency/guardianship petition with the Clerk of Superior Court if capacity and authority are contested.

Talk to a Guardianship Attorney

If a family is dealing with a disputed power of attorney and questions about who can participate in divorce mediation for an incompetent spouse, our firm has experienced attorneys who can help explain the options, court roles, 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.

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.