What proof do I need to provide to show the current agent is failing to care for my parent? – North Carolina

Short Answer

In North Carolina, show concrete, dated evidence that the agent under a power of attorney is not acting in the parent’s best interests or within the authority granted. Typical proof includes missing or inadequate records, unexplained withdrawals or transfers, unpaid bills, lapsed care or insurance, and transactions that benefit the agent. The Clerk of Superior Court can order an accounting, limit or suspend the agent, and, if appropriate, appoint a guardian based on this evidence.

Understanding the Problem

North Carolina families often ask: can a child prove that a sibling holding a power of attorney is failing to act properly, and if so, how? The decision point is whether available evidence supports relief before the Clerk of Superior Court to limit or remove the agent and, if needed, to appoint a guardian. The key actors are the parent (principal), the current agent, and an interested family member seeking court oversight now rather than later.

Apply the Law

Under North Carolina law, an agent must act in good faith, within the authority granted, and in the principal’s best interests. The agent must keep records of all transactions and be able to account for money managed for the principal. The Clerk of Superior Court is the main forum for petitions to compel an accounting, limit or suspend an agent’s authority, or terminate a power of attorney in conjunction with guardianship. Claims for money damages against an agent are brought in the Superior Court.

Key Requirements

• Standing: An interested person (such as an adult child) may petition for relief regarding a power of attorney.
• Agent’s duties: Prove the agent failed to act in good faith, within granted authority, or in the principal’s best interests; or failed to keep adequate records.
• Records and accounting: Show gaps or refusals to produce bank statements, receipts, or ledgers, or show that records contradict the agent’s explanations.
• Financial red flags: Provide evidence of unexplained transfers, cash withdrawals, self-dealing, new joint accounts, beneficiary changes, or unpaid essential bills.
• Care-related concerns: Document missed medical appointments, lapsed insurance, unsafe living conditions, or failure to obtain necessary services when the agent had authority to arrange them.
• Nexus to relief: Connect the proof to requested remedies (accounting, suspension/removal of agent, or appointment of a guardian) to protect the principal now.

What the Statutes Say

• North Carolina Gen. Stat. § 32C-1-114 (Agent’s duties; records) – Requires good faith, best-interest actions, and recordkeeping.
• North Carolina Gen. Stat. § 32C-1-116 (Judicial relief) – Allows petitions to compel an accounting and to limit, suspend, or terminate an agent’s authority.
• North Carolina Gen. Stat. § 32C-1-117 (Agent’s liability; remedies) – Authorizes court remedies including suspension, removal, restitution, and other appropriate relief.
• North Carolina Gen. Stat. § 35A-1208 (Clerk’s jurisdiction) – Confirms the Clerk of Superior Court’s jurisdiction over guardianship matters and related relief.

Analysis

Apply the Rule to the Facts: A sibling holds power of attorney for a parent with early-stage dementia, and another child seeks court relief. The interested child can petition the Clerk to compel the agent to account and to limit or suspend the agent if the records and facts show misuse (for example, unexplained withdrawals or unpaid essentials) or failure to keep records. If evidence also shows that the parent now needs a decision-maker, a guardianship petition may be paired with the POA relief to protect the parent’s person and/or estate.

Process & Timing

1. Who files: An interested person (e.g., adult child). Where: Clerk of Superior Court in the North Carolina county where the parent resides. What: Verified petition for judicial relief under the power of attorney (requesting accounting and to limit/suspend/remove the agent); optionally, a guardianship petition to appoint a suitable guardian. When: File as soon as concerns arise; after service, the clerk typically sets a response period before hearing.
2. At the hearing, the clerk can require an accounting, receive documents and testimony, and may appoint a guardian ad litem if needed. Evidence rules apply. Timeframes vary by county; many matters move in weeks, though complex accountings can take longer.
3. The clerk enters a written order with findings. Outcomes can include ordering an accounting, limiting or suspending the agent, terminating the POA in coordination with guardianship, or appointing a guardian. Appeals from the clerk are taken to Superior Court on the record within 10 days of entry of the order.

Exceptions & Pitfalls

• If the POA document authorizes the challenged act (for example, gifting), the conduct may be permitted unless it violates other duties like good faith or loyalty.
• Even when a POA waives routine accountings, a court can still order an accounting and production of records.
• Claims for monetary damages against an agent generally belong in Superior Court, not before the clerk.
• Service and notice must comply with civil rules; missing a necessary party or representative can delay relief.
• Gather objective proof—bank records, invoices, shutoff or eviction notices, medical appointment logs—instead of relying on suspicion.
• Guardianship is more restrictive; be ready with medical and functional evidence if asking to appoint a guardian.

Talk to a Guardianship Attorney

If you’re dealing with possible misuse of a power of attorney or considering guardianship to protect a loved one, 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.