Jan212026
Guardianship Q&A Series

How do I find out whether a power of attorney is being misused and what proof is needed? – North Carolina

Short Answer

In North Carolina, the most practical way to confirm power of attorney misuse is to identify what authority the agent has under the document and then compare that authority to objective records (bank statements, checks, transfers, and real estate filings). Proof usually means clear, dated paperwork showing transactions that do not benefit the older relative, do not match the power of attorney’s limits, or show self-dealing without proper authorization. If the older relative cannot protect their own finances, a guardianship filing with the Clerk of Superior Court can create court oversight and a formal accounting process.

Understanding the Problem

In North Carolina, when a sibling is acting as an agent under an older relative’s power of attorney, the key question is whether the agent is using that authority for the older relative’s benefit or using it to benefit the agent. The decision point is whether there is enough reliable information to show misuse (or a serious risk of misuse) to justify formal steps such as demanding records, reporting suspected exploitation, or asking the Clerk of Superior Court for guardianship-related protection of the older relative’s estate.

Apply the Law

Under North Carolina law, a power of attorney can authorize an agent to handle the principal’s property and finances, but the agent’s authority is limited by the document and by fiduciary duties. “Misuse” usually means the agent used the principal’s money or property for the agent’s own benefit (or someone else’s) rather than for the principal, exceeded the powers granted, or hid transactions by refusing to provide basic records. When the older relative is (or may be) incompetent and immediate financial harm is likely, the Clerk of Superior Court is the main forum for guardianship and emergency protection of the person’s estate.

Key Requirements

  • Authority: The power of attorney must actually grant the agent the power used (for example, authority to make gifts, change ownership, or sell property).
  • Benefit to the principal: Transactions should be explainable as paying the older relative’s needs, bills, care, and legitimate obligations—not enriching the agent.
  • Reliable documentation: Proof typically comes from objective records (statements, checks, deeds, closing documents, receipts) that show what happened, when, and where the money went.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the concern is that a sibling may be stealing from an older relative using a power of attorney. The first proof step is obtaining the actual power of attorney and identifying what it authorizes (especially any authority to make gifts, change beneficiaries, or transfer property). The second proof step is matching suspicious transactions to hard records (withdrawals, transfers, checks, new joint accounts, or property transfers) and asking whether those transactions plausibly benefited the older relative. If the older relative appears unable to understand or stop the conduct, the guardianship process can be used to create court oversight and protect the estate.

Process & Timing

  1. Who files: Typically an interested person (often a family member) starts the process. Where: The Clerk of Superior Court in the North Carolina county where the older relative resides. What: A petition to adjudicate incompetence and appoint a guardian; if immediate financial harm is likely, a verified motion for an interim guardian may be filed with facts showing the risk. When: If an interim guardian is requested, the hearing must be held as soon as possible and no later than 15 days after the motion is served on the respondent.
  2. Information-gathering step: Collect records that can be authenticated: bank statements, canceled checks, transaction histories, credit card statements, caregiver invoices, and any documents showing new accounts or changed ownership. For real estate issues, check the Register of Deeds for recorded powers of attorney and deeds signed by the agent.
  3. Protective outcome: If the Clerk appoints an interim guardian (or later a guardian of the estate), the guardian can take steps to secure assets, stop improper access, and create a clearer paper trail for what happened and what must be returned.

Exceptions & Pitfalls

  • “Suspicious” is not the same as “misuse”: Some transactions look alarming but are legitimate (for example, paying for care, paying back documented loans, or consolidating accounts). Proof usually requires showing the transaction did not benefit the older relative or exceeded the power granted.
  • Missing the document details: Many power of attorney disputes turn on the exact language. A claim is harder to prove without the signed power of attorney and a timeline of transactions.
  • Real estate paper trails get overlooked: If property was sold or transferred, the Register of Deeds file may show the deed, the agent signature, and whether the power of attorney was recorded as required for real property transfers.
  • Capacity and undue influence issues: If the older relative signed new documents (like a new power of attorney or account changes) during a period of cognitive decline, the facts may point to undue influence. Proof often comes from timing, dependency, isolation, and a result that strongly favors the influencer, supported by medical and third-party records.
  • Waiting too long to stabilize finances: If money is actively leaving accounts, focusing only on “building a perfect case” can allow more loss. In appropriate cases, an interim guardianship request can be used to seek immediate protection of the estate.

Conclusion

In North Carolina, proving power of attorney misuse usually requires (1) the power of attorney document, (2) objective financial or property records showing what the agent did, and (3) a clear link between the transactions and a lack of benefit to the older relative or actions beyond the agent’s authority. When the older relative cannot protect their own finances and there is an imminent or foreseeable risk of harm to the estate, the next step is to file a guardianship petition with the Clerk of Superior Court and, if needed, a verified motion for an interim guardian so the court can intervene quickly.

Talk to a Guardianship Attorney

If you’re dealing with suspected power of attorney misuse involving an older relative, our firm has experienced attorneys who can help explain options for gathering records, emergency protection, and guardianship 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.