Short Answer

Yes. In North Carolina, you can challenge a power of attorney if your parent lacked legal capacity when it was signed or if the agent is breaching duties. Two tracks often run together: (1) a civil case in Superior Court to invalidate the document for lack of capacity or undue influence, and (2) a petition with the Clerk of Superior Court to compel an accounting, suspend the agent, and protect the property. A guardianship case can also replace or limit an agent’s authority.

Understanding the Problem

You are in North Carolina. You co-own rental property with a parent who now has advanced dementia. A relative is acting under a power of attorney, has stopped paying property taxes, and rental income has fallen. You want to know if you can challenge that person’s authority because your parent lacked capacity, and how to protect the property now.

Apply the Law

North Carolina law allows family members and other interested persons to seek court relief when an agent under a power of attorney mismanages assets or when the underlying document is invalid. The Clerk of Superior Court can order an agent to account, suspend or limit authority, and install a temporary fiduciary to safeguard property. To void the power of attorney itself for lack of capacity or undue influence, you file a civil action in Superior Court. A separate guardianship case can appoint a guardian who may revoke or supersede the agent’s powers. Proceedings before the Clerk generally follow the estate-proceeding procedures and move on notice; civil actions follow the Rules of Civil Procedure.

Key Requirements

• Standing: You qualify as an “interested person” to seek relief about the agent’s conduct and the principal’s property.
• Grounds: To invalidate the document, prove the parent lacked capacity at signing (or was unduly influenced). To curb current harm, show the agent’s breach (failure to act in the principal’s best interests, failure to keep records/pay taxes, neglect of rentals).
• Proper forum: Use the Clerk of Superior Court to compel an accounting, suspend/limit the agent, and appoint a special fiduciary; use Superior Court to set aside the power of attorney for lack of capacity/undue influence.
• Evidence: Medical/treating provider records around the signing date, witness statements about the parent’s understanding, the power of attorney’s text, bank/property records, tax notices, and rent ledgers.
• Remedies: Accounting, suspension or removal of the agent, a special fiduciary to take control of rents/taxes, injunctions, constructive trust, and if proven, a court order voiding the power of attorney.

What the Statutes Say

• N.C. Gen. Stat. § 32C-1-116 (Judicial relief) – Who may file; Clerk/Superior Court authority to compel accountings, limit/suspend authority, and related relief.
• N.C. Gen. Stat. § 32C-1-117 (Agent’s liability and remedies) – Breach of fiduciary duty by agent; remedies including suspension, special fiduciary, accounting, and constructive trust.
• N.C. Gen. Stat. § 35A-1105 (Petition to adjudicate incompetence) – Starts a guardianship; a guardian of the estate can supersede or revoke the agent’s authority.
• N.C. Gen. Stat. § 28A-2-6 (Procedure before the Clerk) – Procedural framework the Clerk uses for noticed hearings, orders, and appeals in these petitions.

Analysis

Apply the Rule to the Facts: You have standing as an interested person to act. If your parent lacked capacity at the time the power of attorney was signed, you may file in Superior Court to invalidate it. Independently, the agent’s failure to pay taxes and maintain rentals suggests a breach of fiduciary duty; you can petition the Clerk to compel an accounting, suspend the agent’s authority, and appoint a special fiduciary to collect rent and pay taxes while the case proceeds. If your parent now lacks capacity, a guardianship can place control of the properties with a court‑appointed guardian who can revoke the agent’s powers.

Process & Timing

1. Who files: Any interested person (e.g., an adult child co‑owner). Where: Clerk of Superior Court in the county where the principal resides, an agent resides, or where the property is located. What: Verified petition under Chapter 32C seeking an accounting, suspension/limitations, special fiduciary, and temporary injunctive relief. When: File promptly; the Clerk sets a noticed hearing after responses are due.
2. Parallel relief (if invalidity is the goal): File a civil action in Superior Court to set aside the power of attorney for lack of capacity or undue influence and request a temporary restraining order to stop transfers and require payment of taxes. Courts may schedule preliminary injunction hearings on short notice.
3. Alternative/backup: File a guardianship petition under Chapter 35A. After appointment, a guardian of the estate can assume control of rents, direct payment of taxes, and revoke or supersede the agent’s authority. Expected outcomes are a Clerk’s order (accounting/suspension/special fiduciary), a Superior Court order (invalidating the POA or issuing injunctions), or Letters of Guardianship.

Exceptions & Pitfalls

• Capacity must be proven as of the signing date; later dementia diagnoses alone do not prove incapacity at execution.
• The Clerk cannot void a power of attorney for lack of capacity; that claim belongs in Superior Court.
• A waiver of accounting in the document does not prevent the court from ordering an accounting when misconduct is alleged.
• Act quickly to prevent tax foreclosure or further dissipation; request injunctions and a special fiduciary to stabilize rents and pay taxes.
• Serve all required parties and follow county-specific scheduling rules; defective service can delay relief.

Talk to a Partition Action Attorney

If you’re dealing with a disputed power of attorney and urgent property issues, 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.