Jan272026
Guardianship Q&A Series

What’s the difference between a healthcare power of attorney and guardianship, and why might a facility refuse to follow the power of attorney? – North Carolina

Short Answer

In North Carolina, a healthcare power of attorney (HCPOA) is a private document an adult signs to name an agent to make healthcare decisions only when the adult lacks capacity. Guardianship is a court case where the Clerk of Superior Court can declare an adult “incompetent” and appoint a guardian with court-supervised authority. A facility may refuse to follow an HCPOA when it is not yet effective (capacity has not been determined), the document is invalid or unclear, or the situation is controlled by North Carolina’s involuntary commitment laws rather than an agent’s request.

Understanding the Problem

In North Carolina guardianship situations, the key question is often: can a parent or other family member use a healthcare power of attorney to keep an adult child in inpatient psychiatric or substance use treatment, or is a court order needed? This issue usually comes up when an adult has serious mental health and substance use conditions, repeatedly tries to leave treatment early, and the facility says it cannot follow the family’s instructions. The decision point is whether the adult’s care and discharge are governed by an effective HCPOA or by a court process such as guardianship and/or involuntary commitment.

Apply the Law

North Carolina law treats an HCPOA and guardianship as two different sources of authority. An HCPOA is created by the adult (the “principal”) and gives a chosen “health care agent” authority to make health care decisions, but typically only after a doctor determines the principal lacks capacity to make or communicate health care decisions. Guardianship is created by the court system: the Clerk of Superior Court has original jurisdiction to appoint a guardian for an incompetent adult, and the guardian’s authority comes from the court’s order and ongoing supervision.

Key Requirements

  • Who gives the authority: An HCPOA comes from the adult’s signed document; guardianship comes from the Clerk of Superior Court after an incompetency adjudication.
  • When it applies: An HCPOA generally becomes usable when the adult lacks capacity under the document’s terms; guardianship applies after the court appoints a guardian.
  • What it can (and cannot) control: An HCPOA can authorize broad health care decisions (including certain mental health treatment decisions), but it does not override North Carolina’s involuntary commitment statutes and facility discharge rules for holds and commitments.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe an adult child with significant mental health conditions and substance use issues who is currently in inpatient treatment under an involuntary hold and repeatedly tries to leave early. In that setting, the facility’s discharge and “can the patient leave” rules are often driven by the involuntary commitment process in Chapter 122C, not by a family member’s preferences. Even if an HCPOA exists, it may not be usable unless the adult child previously signed it and the document is effective (usually after a physician determines lack of capacity), and it still does not replace the court authority used for involuntary holds.

Process & Timing

  1. Who files: A concerned parent or other interested person. Where: The Clerk of Superior Court in the county with proper venue in North Carolina. What: A petition to adjudicate incompetence and an application to appoint a guardian (often filed together). When: As soon as a pattern shows the adult cannot manage important decisions and a facility or provider needs clear legal authority.
  2. Next step: The court process moves on the court’s schedule. The respondent must receive notice and has rights in the proceeding. The Clerk decides whether the respondent is incompetent and, if so, what type of guardian is needed (guardian of the person, guardian of the estate, or general guardian). Timing can vary by county and by whether an emergency or interim measure is requested.
  3. Final step: If the Clerk appoints a guardian, the guardian receives court-issued authority to act within the scope of the appointment, and the guardian must follow court requirements and reporting rules. If there is an existing HCPOA, the guardian may need a specific court order to suspend the agent’s authority if there is a conflict.

Exceptions & Pitfalls

  • The HCPOA may not be “turned on” yet: Many HCPOAs require a physician’s determination that the principal lacks capacity. If the facility believes the adult can make and communicate decisions, it may treat the adult as the decision-maker and not the agent.
  • The document may not be valid or usable in practice: Facilities commonly pause when the HCPOA is unsigned, improperly witnessed/notarized, incomplete, too old to locate, or inconsistent with other paperwork on file. A facility may also require proof of identity and a readable copy before relying on it.
  • Involuntary commitment rules can control discharge: When an adult is on an involuntary hold or under commitment proceedings, the facility must follow Chapter 122C procedures. An agent’s request (or a family request) does not automatically override the hold.
  • Guardianship does not automatically erase an HCPOA: If guardianship is granted, the guardian may still need to address the HCPOA formally if there is a conflict, including seeking an order from the Clerk to suspend the agent’s authority under the statute.
  • Mixing “medical decision-making” with “can the person be kept somewhere”: An HCPOA can help with consent for treatment and placement decisions in some situations, but it is not the same thing as a court order authorizing detention. Confusing those roles can lead to delays at exactly the moment quick action is needed.

Conclusion

In North Carolina, a healthcare power of attorney is a private document that lets an adult’s chosen agent make healthcare decisions when the adult lacks capacity, while guardianship is a court-supervised appointment by the Clerk of Superior Court after an incompetency adjudication. A facility may refuse to follow an HCPOA if it is not yet effective, appears invalid or unclear, or the patient’s status is controlled by involuntary commitment rules under Chapter 122C. A practical next step is to file an incompetency petition and guardianship application with the Clerk of Superior Court if ongoing decision-making authority is needed.

Talk to a Guardianship Attorney

If a family is dealing with an adult child in inpatient psychiatric or substance use treatment and the facility will not accept a power of attorney, our firm has experienced attorneys who can help explain options and timelines under North Carolina guardianship and commitment procedures. 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.