How can I challenge my sibling’s invalid power of attorney and regain control of my parent’s finances? – North Carolina

Short Answer

In North Carolina, you challenge a questionable power of attorney by filing a verified petition with the Clerk of Superior Court to compel an accounting and have the Clerk determine the agent’s authority. If your parent lacks capacity or is being exploited, you can also petition for guardianship so a court‑appointed fiduciary can manage finances and revoke or amend any power of attorney. For urgent risks (money moving now), seek emergency court orders to freeze accounts or restrain transfers.

Understanding the Problem

In North Carolina, how do I contest my sibling’s power of attorney, stop questionable transactions, and restore proper control over my parent’s money through the Clerk of Superior Court? One key fact: your parent has an Alzheimer’s diagnosis.

Apply the Law

North Carolina’s power of attorney law lets an “interested person” ask the Clerk of Superior Court to require an agent to account, to decide what authority an agent really has, and, if a guardian is appointed, to limit, suspend, or end an agent’s powers. The Clerk handles these POA oversight matters. Claims for money damages or to set aside a POA for undue influence go to Superior Court. If your parent cannot manage affairs, a guardianship under Chapter 35A places financial control with a court‑appointed guardian, who can revoke or amend a POA and give clear instructions to banks.

Key Requirements

• Standing: You, your parent, or any other “interested person” may petition to compel an accounting and have the Clerk determine an agent’s authority.
• Forum and scope: File POA oversight petitions with the Clerk of Superior Court; file damages or set‑aside actions in Superior Court.
• Capacity trigger: If your parent lacks capacity or is at risk, file a guardianship; a guardian can revoke or amend a POA and direct financial institutions.
• Accounting duty: An agent must keep records and substantiate expenditures; the Clerk can order a full accounting and supporting documents.
• Emergency relief: For immediate risks, seek temporary restraining orders, injunctions, or account holds to prevent dissipation.

What the Statutes Say

• North Carolina Gen. Stat. § 32C-1-116 (Judicial relief re: powers of attorney) – Clerk can compel an accounting, determine authority, and more; damages claims are outside the Clerk’s POA jurisdiction.
• North Carolina Gen. Stat. § 32C-1-117 (Agent’s liability) – Breach of fiduciary duty by an agent and available remedies.
• North Carolina Gen. Stat. § 32C-1-108 (Nomination of guardian; relation to agent) – A court‑appointed guardian may revoke or amend a POA and the agent must account to the guardian.
• North Carolina Gen. Stat. § 35A-1101 (Incompetency and guardianship basics) – Framework for adjudicating incompetence and appointing a guardian.

Analysis

Apply the Rule to the Facts: Because your parent has Alzheimer’s, capacity at the time of the revocation is a central issue. File with the Clerk to compel an accounting and to determine which agent, if any, has valid authority. If the parent lacks capacity or is being unduly influenced, petition for guardianship so a court‑appointed fiduciary can manage accounts and revoke any improper POA. If funds are moving now, request emergency court orders to restrain transfers and notify banks with certified orders. Keep your records to respond to the theft accusations.

Process & Timing

1. Who files: You (as an interested person) or your parent. Where: Clerk of Superior Court in the North Carolina county where your parent resides. What: A verified petition under the POA statute to compel an accounting and determine authority; if capacity is in doubt, also file AOC‑SP‑200 (Petition for Adjudication of Incompetence and Application for Appointment of Guardian). When: File as soon as concerns arise; emergencies may justify same‑day restraining requests in Superior Court.
2. Serve respondents; they typically have 20 days to respond to the estate‑style summons. The Clerk sets a hearing. Use subpoenas to obtain bank and medical records. If needed, seek a temporary restraining order or preliminary injunction to freeze accounts.
3. After hearing, expect written orders: e.g., an accounting order; an order confirming, limiting, or terminating an agent’s authority; or Letters of Guardianship. Provide certified copies to banks and, for revocations, record them with the Register of Deeds.

Exceptions & Pitfalls

• If your parent is competent, they may revoke a prior POA and name another agent; the court will not override a competent principal’s choice.
• Claims for money damages or to set aside a POA for undue influence/lack of capacity belong in Superior Court, not before the Clerk.
• Do not move funds without clear authority; it can escalate criminal allegations and harm your case.
• Record any court‑approved revocation and give written notice to financial institutions so they honor the correct authority.
• Service defects or notice issues can delay relief; follow the estate‑proceeding service rules carefully.

Talk to a Guardianship Attorney

If you’re dealing with a disputed power of attorney and urgent questions about who controls a parent’s finances, 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.