Short Answer

In North Carolina, while your mother is alive, her assets belong to her—not to future heirs—and her financial agent under a power of attorney (POA) must manage them for her benefit. You may not take or control those assets, but as an “interested person” you can ask the Clerk of Superior Court to order the agent to account and, if appropriate, limit or suspend the agent’s authority. When your mother dies, the POA ends and a court‑appointed personal representative takes over. If the original will cannot be found, a court can sometimes probate a copy; otherwise, the estate is distributed by intestacy.

Understanding the Problem

In North Carolina, can I—my mother’s only living heir—access or control her money or property while my niece holds her financial power of attorney and my mother has dementia?

Apply the Law

Under North Carolina law, there is no “estate” to inherit until a person dies. While living, only the principal (your mother) owns her assets. A POA agent owes fiduciary duties to the principal, not to heirs, and must act in the principal’s best interests, keep records, and follow the document’s terms. If concerns arise, an interested person may start a proceeding before the Clerk of Superior Court to compel an accounting, determine the agent’s authority, or address compensation. Claims for monetary damages against an agent are filed in Superior Court. After death, the POA terminates and an executor or administrator manages the probate estate. If the original will is missing, a verified petition may ask the Clerk to admit a copy by proving due execution, contents, that the original was lost or destroyed without intent to revoke, and a diligent search; if that fails, the estate follows intestacy.

Key Requirements

• No present heir rights while alive: Heirs have no ownership of a living person’s assets; the POA agent manages solely for the principal’s benefit.
• Standing to seek oversight: An “interested person” may petition the Clerk to compel an accounting and address an agent’s authority or compensation.
• Correct forum: The Clerk of Superior Court hears POA proceedings for accountings and most authority questions; monetary damages claims go to Superior Court.
• POA ends at death: After death, the personal representative (not the agent) collects and administers assets through probate.
• Lost will path: To probate a copy, show due execution, contents, loss/destruction without intent to revoke, and a diligent search; otherwise, intestacy applies.
• Notice and service: Contested estate/POA proceedings require proper service (Rule 4) on interested parties and, if needed, appointment of a guardian ad litem.

What the Statutes Say

• N.C. Gen. Stat. § 32C-1-116 (POA proceedings) – Clerk jurisdiction to compel accountings, address authority, and related POA issues.
• N.C. Gen. Stat. § 32C-1-117 (Agent’s liability and remedies) – Remedies for breach of fiduciary duty by an agent.
• N.C. Gen. Stat. § 28A-2A-2 (Presenting a will; time limits) – Who may apply for probate; 60‑day presentation rule and notice.
• N.C. Gen. Stat. Chapter 29 (Intestate Succession) – Default distribution when there is no valid will.

Analysis

Apply the Rule to the Facts: Because your mother is alive and has dementia, your niece (as agent) controls your mother’s financial accounts strictly for your mother’s benefit, and you have no present right to use or receive those assets. As an interested person, you may ask the Clerk of Superior Court to order your niece to provide a full accounting and records if you have concerns. If the original will cannot be found after your mother’s death, you can petition to probate a copy by proving the required elements; if that is not possible, intestacy applies and, where there is no surviving spouse and you are the only surviving child, you would generally receive the entire probate estate under North Carolina’s intestacy rules.

Process & Timing

1. Who files: Any interested person. Where: Clerk of Superior Court (estate/POA proceeding) in a county where your mother resides, an agent resides, or her property is located. What: Verified petition to compel an accounting and, if warranted, to limit/suspend authority; request issuance of an Estate Proceeding Summons; arrange Rule 4 service. When: As soon as concerns arise; emergency relief may be available in urgent cases.
2. After death—will path: The named executor or any interested person files the will and the Application for Probate and Letters (AOC‑E‑201). If the original is missing, file a verified petition to admit a copy, with evidence of due execution, contents, loss without intent to revoke, and diligent search; serve all parties who would inherit if there were no will.
3. After death—no will path: File Application for Letters of Administration (AOC‑E‑202) with the Clerk. Once letters issue, the personal representative gathers assets, publishes notice to creditors, files an inventory, pays claims, and then distributes under intestacy.

Exceptions & Pitfalls

• To curtail an agent’s authority, a guardian may be required: The Clerk can limit or suspend an agent’s powers when a general or estate guardian is appointed; consider a guardianship if the agent is mismanaging funds.
• Wrong forum: Use the Clerk for accountings and authority questions; file in Superior Court for money‑damages claims (e.g., breach of fiduciary duty).
• Lost original will: If the original can’t be found, courts presume revocation unless you prove loss without intent to revoke and the other required elements.
• Service and notice: Contested POA/estate matters require Rule 4 service; missing or unknown heirs may require a guardian ad litem.
• POA ends at death: Do not rely on the agent to handle the estate post‑death; only a personal representative has authority to collect and distribute probate assets.

Talk to a Probate Attorney

If you’re dealing with POA control, missing‑will questions, or how intestacy would affect you, 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.