Jan282026
Guardianship Q&A Series

How can I get a power of attorney if my spouse is in the ICU and heavily sedated? – North Carolina

Short Answer

In North Carolina, a power of attorney must be signed by the person giving the authority (the “principal”) while that person has enough mental capacity to understand what is being signed. If a spouse is heavily sedated in the ICU and cannot understand and sign, a new power of attorney usually cannot be created at that time. The practical alternative is often a court process—most commonly an interim (emergency) guardianship—through the Clerk of Superior Court to get limited authority quickly.

Understanding the Problem

In North Carolina, can a spouse obtain a new power of attorney when the other spouse is in the ICU and heavily sedated, and what happens if the sedation prevents the spouse from legally signing? The decision point is whether the hospitalized spouse can understand the document well enough to sign it. If the spouse cannot, the question becomes what court process can provide short-term authority to make needed decisions while the spouse is incapacitated.

Apply the Law

Under North Carolina law, a power of attorney is a voluntary delegation of authority. That means the principal must be able to understand the nature of the document and the powers being granted at the time of signing. Heavy sedation often prevents that. When a person cannot validly sign a power of attorney, the usual legal path to obtain decision-making authority is a guardianship proceeding in front of the Clerk of Superior Court, including a request for an interim guardian when immediate action is needed. Interim guardianship is designed to address imminent or foreseeable risks to the person’s health or to the person’s property before the full incompetency hearing occurs.

Key Requirements

  • Capacity to sign a power of attorney: The spouse in the ICU must be able to understand what a power of attorney is and what authority is being granted at the moment of signing.
  • Proper execution formalities: The document must be signed and completed with the required formalities for the type of power of attorney (financial vs. health care), which commonly includes notarization and, for some documents, witnesses.
  • If capacity is lacking, a court order is needed: When the spouse cannot sign with capacity, the Clerk of Superior Court can appoint an interim guardian if there is reasonable cause to believe the spouse is incompetent and immediate intervention is needed to prevent harm to the spouse or the spouse’s estate.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the spouse is in the ICU and heavily sedated, and there is no signed power of attorney in place. If the sedation prevents the spouse from understanding and signing a document, a new power of attorney generally cannot be created at that time because the principal’s capacity at signing is the key requirement. In that situation, the most direct way to obtain legal authority is typically to ask the Clerk of Superior Court for an interim guardian (limited, short-term authority) while a full incompetency/guardianship case moves forward.

Process & Timing

  1. Who files: Typically the spouse or another interested person. Where: The Clerk of Superior Court in the county where the hospitalized spouse resides (and sometimes where the spouse is physically present). What: A petition to adjudicate incompetence and appoint a guardian, plus a verified motion requesting an interim guardian if immediate authority is needed. When: As soon as there is an urgent need to consent to care or protect assets; the interim-guardian hearing must be held as soon as possible and no later than 15 days after the motion is served on the respondent.
  2. Notice and representation: The motion and notice of hearing must be served promptly on the respondent and the respondent’s counsel or guardian ad litem, and others the clerk designates. The court process is designed to protect the hospitalized spouse’s rights even when the spouse cannot participate meaningfully.
  3. Order and limits: If the clerk finds reasonable cause to believe the spouse is incompetent and that immediate intervention is needed, the clerk can enter an order appointing an interim guardian with specific, limited powers. The interim guardianship ends on the earliest of the date in the order, the appointment of a permanent guardian after the incompetency hearing, dismissal, or the statutory time limits (with possible extension for good cause).

Exceptions & Pitfalls

  • Temporary lucidity is not the same as capacity: Even if the spouse briefly appears awake, the key issue is whether the spouse can understand the document and the authority being granted at signing. Rushing a signing in the ICU can create later challenges to validity.
  • Using the wrong tool for the job: A power of attorney (when validly signed) is usually faster and less restrictive than guardianship, but it cannot be created after capacity is lost. When immediate authority is needed and no valid documents exist, interim guardianship is often the practical route.
  • Overbroad requests: Courts often limit interim guardianship powers to what is necessary to address the immediate medical or financial risk. A narrowly tailored request can move faster and reduce conflict.
  • Real estate and banking friction: Even with a valid financial power of attorney, real property transactions may require recording the power of attorney, and financial institutions may require their own review. If the goal is to sell or refinance property quickly, planning for recording and documentation is critical.

For additional background on how these tools differ, see the difference between a medical power of attorney and guardianship.

Conclusion

In North Carolina, a new power of attorney generally can only be created if the spouse in the ICU can understand and sign the document at the time of signing. When heavy sedation prevents that, the usual next step is to seek court authority through the Clerk of Superior Court, often by filing a guardianship petition along with a verified motion for an interim guardian. The interim-guardian hearing must be held as soon as possible and no later than 15 days after service on the respondent, so prompt filing matters.

Talk to a Guardianship Attorney

If a spouse is in the ICU without a signed power of attorney and decisions or financial steps cannot wait, our firm has experienced attorneys who can help explain options and timelines, including interim guardianship. 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.