No Power of Attorney? What North Carolina Families Face When Parents Can’t Make Decisions
What Happens if Your Parents Can’t Make Decisions Anymore and There Is No Plan
Life has a way of surprising us. One moment, our parents are independent and making their own decisions. The next moment, a stroke, accident, or diagnosis can change everything. Suddenly, bills need to be paid, doctors need instructions, and decisions about care cannot wait. But what happens if your parents cannot make decisions anymore and there is no plan in place?
For many families in North Carolina, this scenario is not just a hypothetical. It is a reality that often brings stress, conflict, and heartache. Without the right legal documents, families are forced into the guardianship process, a court-driven system that strips families of control and places life-changing decisions in the hands of a judge.
Let me share a story that might feel familiar.
A Family Story: When Everything Stopped
Susan thought her parents had everything under control. They had raised three children, paid off their home in Garner, North Carolina, and lived responsibly. But when her father suffered a sudden and massive stroke, Susan’s world turned upside down.
Her father could no longer speak clearly. He could not sign his name. He could not tell doctors how he wanted to be treated. When the hospital asked, “Who can legally make decisions for your father?” Susan froze. She looked at her siblings, and they all realized the same hard truth. Their parents had never signed legal documents giving someone authority to act.
There was no health care power of attorney. No durable financial power of attorney. No advance directive. Nothing.
The hospital staff explained that, legally, no one in the family had authority to step in. Decisions could not be made until the court appointed someone. And so began a long and painful guardianship process.
The Guardianship Process in North Carolina
Guardianship is what happens in North Carolina when an adult loses the ability to make or communicate decisions and no legal planning has been done ahead of time. The family must petition the Clerk of Superior Court to have the person declared “incompetent.” That word alone is devastating to hear about someone you love.
The guardianship process requires medical evaluations, a formal court hearing, and notification of certain relatives. It is also public, meaning details about your parent’s health, finances, and family situation are open to anyone who wants to look.
Even worse, families often disagree about who should serve as guardian. In Susan’s family, her brother thought he was better with money and should be appointed. Susan believed her close proximity made her the best choice. Their sister wanted to avoid the responsibility altogether. These disagreements escalated into arguments, further delaying their father’s care.
Meanwhile, bills went unpaid. The mortgage company began sending late notices. The hospital pressed for decisions about treatment. And Susan’s father was left in limbo.
The Hard Truth: The Court Decides, Not You
When there is no legal plan, families lose control. In North Carolina, the court will ultimately decide who serves as guardian and what decisions can be made. Sometimes the court selects a family member. Sometimes the court chooses a professional or even a public guardian. Either way, it is the judge—not the family—that makes the final decision.
This process is not only emotionally draining but also financially costly. Legal fees, court costs, and ongoing reporting requirements can easily add up to thousands of dollars. Guardianship cases often take months to resolve, leaving families in a holding pattern during an already difficult time.
How It Could Have Been Different
Susan’s story could have unfolded very differently if her parents had taken the time to meet with an estate planning and elder law attorney in North Carolina. With just a few essential documents, the family could have avoided guardianship entirely and ensured that Susan’s father’s wishes were carried out smoothly and privately.
Here are the key documents every North Carolina family should have in place:
Durable Power of Attorney
A durable power of attorney allows a trusted person, called an “agent,” to handle financial and legal matters if your parent becomes incapacitated. This document can cover everything from paying bills and managing bank accounts to handling real estate and filing taxes. Without it, no one can legally manage your parent’s financial life without going to court.
Health Care Power of Attorney
A health care power of attorney allows your parent to name someone to make medical decisions if they are unable to speak for themselves. This person can talk with doctors, consent to treatments, and ensure your parent’s medical wishes are respected. Without it, families may be left guessing, or worse, fighting, about what care should be provided.
Living Will
A living will, sometimes called an advance directive, gives your parent the opportunity to outline their wishes for end-of-life care. Do they want life support if recovery is unlikely? Would they prefer comfort care only? These decisions are deeply personal, and a living will ensures that your parent’s values, not the hospital’s default procedures, guide care.
HIPAA Authorization
Doctors are bound by privacy laws. Without a HIPAA authorization, they may not be able to share information about your parent’s medical condition, even with close family members. A HIPAA authorization gives your parent’s doctors permission to communicate openly with the people your parent trusts.
Revocable Living Trust (Optional but Powerful)
For families who want to go further, a revocable living trust can provide even more protection. Assets such as a home or investment accounts can be managed by a successor trustee if your parent becomes incapacitated. This avoids court interference and provides seamless management of finances and property.
The Lesson for North Carolina Families
The reality is that none of us know what tomorrow will bring. We like to think there will always be time to put a plan in place, but once a crisis strikes, it is too late. Guardianship is not something any family wants to experience. It is expensive, stressful, and can leave lasting scars on family relationships.
The solution is simple: plan ahead. With the right legal documents, your parents can choose who makes decisions, how those decisions should be made, and how their affairs should be managed. Families avoid court, avoid conflict, and gain peace of mind.
Next Steps
If you are caring for aging parents, do not wait until an emergency to find out that you do not have the authority you need. Planning now is a gift to both you and your loved ones.
At Mackintosh Law, PLLC in Garner, North Carolina, I help families put the right documents in place to avoid guardianship battles, protect loved ones, and bring peace of mind. Call my office today at (919) 336-4219 or visit thehappylawyernc.com to schedule your free consultation. Together, we can make sure your family never has to experience what Susan’s family went through.
