Jan212026
Guardianship Q&A Series

How can we challenge a durable power of attorney if the person signing it had dementia symptoms or was hallucinating at the time? – North Carolina

Short Answer

In North Carolina, a durable power of attorney can be challenged if the person who signed it (the “principal”) did not have the mental capacity to understand what they were signing, or if someone pressured or manipulated them into signing. The most common way to get court control quickly is to file an incompetency/guardianship case with the Clerk of Superior Court and ask the Clerk to limit or suspend the agent’s authority while the case is pending. The proof usually comes from medical records, witness testimony about the signing, and evidence of suspicious circumstances or misuse.

Understanding the Problem

In North Carolina guardianship disputes, the key question is often: can a spouse or family member challenge a durable power of attorney when the principal showed dementia-like symptoms, confusion, or hallucinations at the time of signing, and the document names an adult relative as agent. The decision point is whether the principal had enough mental capacity to knowingly grant decision-making authority, or whether the document resulted from pressure, manipulation, or an improper signing process. The usual goal is to stop the agent from acting under the document and have the Clerk of Superior Court decide who should make decisions going forward.

Apply the Law

Under North Carolina law, a durable power of attorney is meant to let an agent act for the principal, often even after the principal becomes incapacitated. But the principal still must have capacity at the moment of signing. When capacity is doubtful (for example, dementia symptoms or hallucinations), or when the circumstances suggest coercion, families commonly use a guardianship/incompetency proceeding before the Clerk of Superior Court to put the principal’s protection first and to bring the power of attorney under court supervision. If a guardian is appointed, the guardian may be able to seek limits on the agent’s authority, and the Clerk can address whether the agent should continue acting.

Key Requirements

  • Capacity at signing: The principal must have understood, in a basic and practical way, that the document gave another person authority to act and what that authority could affect.
  • Voluntary decision-making: The principal must have signed freely, not because of intimidation, manipulation, or overpowering pressure from the proposed agent or others.
  • Proper forum and procedure: Challenges are commonly raised through the Clerk of Superior Court in an incompetency/guardianship case, where the court can protect the principal and control who can act for them.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the concern is that a spouse with dementia-like symptoms may have signed a durable power of attorney during a period of hallucinations or severe confusion, naming an adult relative as agent, and the other spouse did not know about it. Those facts go directly to (1) capacity at the moment of signing and (2) whether the signing reflected a voluntary, informed choice. If the adult relative quickly began using the document to control money, access accounts, or isolate the impaired spouse, those circumstances can support a request for immediate court oversight while the validity and appropriateness of the agent’s authority are reviewed.

Process & Timing

  1. Who files: Typically the concerned spouse or another interested person. Where: The Clerk of Superior Court in the county where the impaired spouse resides. What: A verified petition to adjudicate incompetence and request appointment of a guardian under Chapter 35A. When: As soon as there is a real risk of harm (financial loss, unsafe decisions, or isolation), especially if the agent is actively using the power of attorney.
  2. Immediate protections: In the guardianship case, it is common to ask the Clerk for interim protections (for example, limiting who can access funds or make decisions) while the case is pending, and to require the agent to account for actions taken.
  3. Hearing and outcome: The Clerk holds a hearing on incompetency. If the Clerk adjudicates the person incompetent, the Clerk can appoint a guardian (of the person, of the estate, or a general guardian). After appointment, the guardian can seek orders that restrict or suspend agent authority where appropriate and can take steps to recover or protect assets.

Exceptions & Pitfalls

  • “Good day” arguments: Dementia symptoms do not automatically void a document. The key issue is capacity at the time of signing, so the other side may argue the principal had a lucid interval. Medical notes and witness testimony tied closely to the signing date often matter.
  • Focusing only on the spouse’s lack of notice: A spouse’s lack of knowledge may be a red flag, but it is not, by itself, proof the document is invalid. The challenge usually needs evidence of incapacity, undue influence, or improper execution.
  • Not preserving evidence early: Waiting can lead to lost records and fading memories. Common evidence includes medical records around the signing date, pharmacy records, caregiver notes, bank records showing sudden changes, and testimony from witnesses present at signing.
  • Real estate transfers: If the agent used the power of attorney to transfer real property, recording rules and register of deeds records may help establish timing and use. Quick action can reduce the risk of additional transfers.

Related reading may help frame proof issues in similar capacity disputes, including challenging a power of attorney based on capacity and what to do about a forged or improperly created power of attorney.

Conclusion

In North Carolina, a durable power of attorney can be challenged when the principal likely lacked capacity at signing (for example, severe dementia symptoms or hallucinations) or when the signing was not voluntary due to pressure or manipulation. The most practical way to get court protection quickly is often to file a verified incompetency petition with the Clerk of Superior Court under Chapter 35A and request immediate limits on decision-making while the case is pending. The next step is to file the incompetency/guardianship petition with the Clerk promptly once misuse or risk appears.

Talk to a Guardianship Attorney

If a durable power of attorney was signed during dementia symptoms or hallucinations and it may not reflect the principal’s true wishes, a guardianship case can bring the situation under court supervision and protect the vulnerable adult. Our firm has experienced attorneys who can help explain options, evidence to gather, 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.