Short Answer

In North Carolina, you prove an agent’s undue influence or breach of fiduciary duty by showing a fiduciary relationship (created by the power of attorney), self-dealing or actions not in the parent’s best interest, and resulting harm. Practically, that means opening the parent’s estate, filing a civil lawsuit in Superior Court to void the deed and recover assets, and seeking court orders for an accounting, document subpoenas, and a constructive trust on property now held by the agent’s estate or trust.

Understanding the Problem

In North Carolina probate, the issue is whether you can challenge your sibling’s conduct as your parent’s agent under a durable power of attorney and recover property. You’re asking how to establish undue influence or a breach of fiduciary duty and what steps to take. One key fact here is that your parent was showing cognitive decline when the power of attorney was signed.

Apply the Law

Under North Carolina law, an agent under a power of attorney owes strict duties of loyalty, good faith, and acting in the principal’s best interests. Self-dealing (like deeding the principal’s real estate to oneself or gifting the principal’s jewelry to others) is closely scrutinized and generally voidable unless the power of attorney expressly authorizes such gifts and the transactions were fair to the principal. When a fiduciary benefits from a transaction with a vulnerable principal, courts often shift the burden to the fiduciary to show the transaction was proper. Claims for money damages related to a breach must be brought in Superior Court, while a personal representative (PR) can use an estate proceeding before the Clerk of Superior Court to recover specific estate property held by others. If a trust now holds the property, trust-law remedies—like an accounting, removal, or a constructive trust—may apply.

Key Requirements

• Fiduciary relationship: Show a valid power of attorney existed, making the sibling a fiduciary required to act loyally and in the parent’s best interests.
• Self-dealing or unfair conduct: Identify deeds, transfers, or gifts that benefited the agent (or their circle) and were not authorized by the document or were otherwise unfair to the parent.
• Causation and harm: Show the conduct reduced or diverted the parent’s assets, harming the parent or the estate/heirs.
• Undue influence indicators: Demonstrate weakened intellect plus an unnatural benefit to the agent and the agent’s active role in procuring the transfer.
• Tracing and parties: Trace assets into the agent’s estate or trust and include all current holders (e.g., the agent’s child or trustee) so the court can grant complete relief.

What the Statutes Say

• N.C. Gen. Stat. § 32C-1-117 (Remedies under Power of Attorney law) – Court may void acts, order an accounting, impose a constructive trust, and trace/recover property.
• N.C. Gen. Stat. § 32C-2-217 (Gifts by agent) – An agent needs express gifting authority; limits apply to self-benefiting gifts.
• N.C. Gen. Stat. § 28A-15-12 (Recovery of estate property) – The Clerk can order third parties to deliver specific property belonging to the estate.
• N.C. Gen. Stat. § 36C-10-1001 (Trust remedies) – Court can order accountings, redress breaches, and impose constructive trusts on trust property.

Analysis

Apply the Rule to the Facts: The power of attorney creates a fiduciary relationship. Transferring your parent’s real estate to the agent’s own name and giving away jewelry and furniture are classic self-dealing acts that likely breach the duty of loyalty—especially if the POA did not expressly authorize gifting to the agent. Given your parent’s cognitive decline at signing, undue influence is also at issue. Because the agent has died and their child occupies the home through the agent’s trust, you will need to trace title and name the trustee/beneficiaries to obtain effective relief.

Process & Timing

1. Who files: The parent’s personal representative (PR) after opening the estate. Where: Civil action in Superior Court (for breach of fiduciary duty/constructive fraud, to set aside the deed, impose a constructive trust, and demand an accounting); and an estate proceeding before the Clerk of Superior Court (to recover specific estate property under § 28A-15-12). What: Verified complaint (civil) and verified petition (estate proceeding); record a lis pendens in the county where the real property sits. When: File promptly; many related claims have short limitation periods (often three years from discovery; some trust remedies have a five-year outer limit tied to the trustee’s death/removal).
2. Serve the agent’s estate or trust, the current occupant, any grantees on the deed, and anyone holding the personal items. Seek a temporary restraining order or preliminary injunction to prevent further transfers, and subpoena bank, deed, medical, and trust records for proof of self-dealing and capacity/undue influence. County timelines vary; expect several months for discovery.
3. Ask the court to void the deed, impose a constructive trust over the property and proceeds, order an accounting, and direct turnover of personal assets. If you prevail, the court will enter judgment; the Clerk can issue an order compelling delivery of specific property to the PR, and the court can order possession if occupants refuse to vacate.

Exceptions & Pitfalls

• If the POA expressly authorized gifts to the agent or self-dealing, your burden is higher; you must still show the transactions were fair and in the parent’s best interests.
• Bona fide purchasers for value without notice may be protected; if the property was sold onward, you may recover value from the wrongdoer rather than the land itself.
• The Clerk of Superior Court cannot award money damages; bring damages claims in Superior Court and use the Clerk’s estate proceeding to compel delivery of specific assets.
• Deadlines vary: many tort/equitable claims are three years from discovery; some trust claims are limited to five years from the trustee’s death, resignation, or removal.
• Name all necessary parties (trustee, current occupants, transferees) and record a lis pendens; missing parties can block complete relief.

Talk to a Probate Attorney

If you’re dealing with suspected self-dealing or undue influence by a sibling-agent and need to recover real estate or valuables, 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.