Dec62025
Guardianship Q&A Series

Do I need guardianship, or would a power of attorney be enough to evict my sibling and manage the house of my family member? – North Carolina

Short Answer

Under North Carolina law, a valid, properly drafted and recorded financial power of attorney often gives an agent enough authority to manage a family member’s house and start an eviction, without needing a guardianship. Guardianship becomes necessary when the family member is legally incompetent, lacks a workable power of attorney, or when court oversight is needed to protect the person or estate. The exact answer depends on the wording of the power of attorney, the capacity of the family member, and the housing situation with the sibling.

Understanding the Problem

The core question is whether a North Carolina court-ordered guardianship is required, or whether a power of attorney is enough, for one family member to manage another family member’s home and remove a sibling who is living there. This comes up when an older or disabled adult owns a house, can no longer safely manage bills or property, and a relative needs legal authority to collect rent, pay the mortgage, deal with repairs, and, if needed, file eviction papers. The decision point is whether that authority can come from a private power of attorney document or must come from a formal guardianship through the clerk of superior court.

Apply the Law

Under North Carolina law, a power of attorney is a private document where a competent adult (the principal) authorizes an agent to act on financial or property matters, including real estate. Guardianship is a court process in which the clerk of superior court finds a person incompetent and appoints a guardian of the estate, guardian of the person, or general guardian, who then manages the ward’s affairs with court supervision. Eviction itself is handled in court (usually small claims in district court), and the person or entity with the legal right to possession of the property (or that person’s lawful agent or guardian) is the one who brings the case.

Key Requirements

  • Capacity and existing documents: The family member must have been mentally capable when signing a power of attorney, and the document must actually grant authority over real property and landlord-tenant matters; if not, guardianship may be required.
  • Proper authority to manage and evict: The agent, or a court-appointed guardian of the estate or general guardian, must have legal authority to manage the house, collect rent, and bring legal actions to recover possession of the property, including eviction.
  • Court forum and oversight: Evictions typically go through small claims court before a magistrate, while guardianship is handled as a special proceeding before the clerk of superior court, with continuing reporting and approval duties for a guardian of the estate.

What the Statutes Say

Analysis

Apply the Rule to the Facts: With no specific facts given, consider two common patterns. In one, an older adult signed a durable financial power of attorney years ago that clearly authorizes the agent to handle real estate, including leases and legal actions about the property. If that document is valid and properly recorded when used for real property, an eviction against a sibling occupant can often proceed in the owner’s name by the agent, without guardianship. In another pattern, the adult never signed a power of attorney, or the document is vague, revoked, or disputed, and the adult is now incompetent. In that case, a guardianship of the estate or general guardianship through the clerk of superior court is usually required to give someone clear legal authority to manage the home and bring eviction proceedings.

Process & Timing

  1. Who files: If using a power of attorney, the property owner is the plaintiff, acting through the named agent; if using guardianship, the court-appointed guardian of the estate or general guardian acts for the ward. Where: Eviction (summary ejectment) is filed in small claims court before a magistrate in the county where the property lies; guardianship is filed with the clerk of superior court in the county where the alleged incompetent person resides. What: For guardianship, the petitioner files a verified petition for adjudication of incompetence and application for appointment of guardian; for eviction, the plaintiff files a complaint in summary ejectment on the standard AOC forms available on North Carolina courts’ websites. When: Guardianship hearings are usually scheduled several weeks after filing; eviction hearings often occur within a few weeks of filing, depending on the county’s docket.
  2. After a guardianship hearing, if the clerk finds the person incompetent, the clerk enters an order and issues letters of guardianship. Those letters give the guardian of the estate or general guardian legal authority to manage the ward’s property, including decisions about who can live in the home and whether to seek eviction.
  3. For eviction, after filing and serving the complaint in summary ejectment, the magistrate holds a hearing and decides whether to grant possession to the owner (or guardian/agent). If granted and if the occupant does not move out voluntarily, the owner, through the sheriff, may enforce the writ of possession. The guardian or agent continues to manage the house, pay expenses, and, if authorized, lease or sell the property, subject to any court-approval requirements for a guardian.

Exceptions & Pitfalls

  • If the power of attorney does not clearly authorize real estate and eviction-type actions, courts and magistrates may refuse to recognize the agent’s standing, making a guardianship the safer route.
  • If the family member still has capacity and disagrees with the eviction or management decisions, a guardianship may not be granted because incompetence has not been proven; in that situation, the owner’s own wishes control.
  • Recording requirements for powers of attorney that affect real property can be overlooked; failure to record can create challenges in real estate transactions, and while it does not automatically void actions, it may complicate eviction or sale plans.
  • Guardians of the estate have fiduciary duties, must account regularly to the clerk, and often need court approval for major real estate actions; skipping these steps can lead to personal liability or removal as guardian.
  • Eviction procedure has its own strict notice, service, and filing requirements; even with proper authority under a power of attorney or guardianship, mistakes in the summary ejectment process can cause dismissals or delays.

Conclusion

In North Carolina, a well-drafted, properly executed and recorded financial power of attorney will often be enough for an agent to manage a family member’s house and bring an eviction against a sibling occupant. Guardianship of the estate or general guardianship becomes necessary when the owner is legally incompetent and lacks a usable power of attorney, or when court supervision of property decisions is needed. The key next step is to have an attorney review the existing power of attorney and, if it is inadequate or absent, consider filing a guardianship petition with the clerk of superior court.

Talk to a Guardianship Attorney

If a family member’s house needs to be managed and a sibling may need to be evicted, and there is uncertainty about whether a power of attorney is enough or a guardianship is required, our firm has experienced attorneys who can help explain options and timelines under North Carolina law. 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: 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.