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You have
the right to control the decisions about
your medical care. To make these
decisions, you must be competent and
able to communicate. If you are not
competent or able to communicate,
someone else must make these decisions
for you. A health care power of attorney
allows you to choose who will make
medical decisions for you if you cannot
make them yourself.
To sign a health care power of attorney, you must be at least 18 years old, and you must be able to make and communicate health care decisions. You are called the principal. You may appoint any competent person who is at least 18 years old and who is not providing compensated health care to you. The person you appoint is called your health care agent. Choosing your health care agent |
Choosing your health care agent
A health care power of attorney is the best assurance that your medical care will be handled the way you want if you become unable to make these decisions yourself. Simply telling your family what you want done is not enough. You need to give someone the legal right to make these decisions for you. Choose your health care agent carefully. He or she will have the right to make life and death decisions on your behalf. Make sure your health care agent understands your wishes. For guidance and more information, ask your attorney.
You must sign your health care power of attorney in the presence of two witnesses:
A notary public or a clerk or assistant clerk of superior court must certify your health care power of attorney.
You may give your health care agent the same power and authority as you have yourself to make your medical decisions. This includes the power to consent to your doctor giving, withholding or stopping any medical treatment, service or diagnostic procedure, including life-sustaining procedures. You may combine your health care power of attorney with your living will.
You also may limit your health care agent's power. To make sure that your health care agent understands how you want everything handled, you may provide directions or guidelines as part of your health care power of attorney. However, limits on your health care agent's authority may reduce his or her ability to make necessary medical decisions on your behalf. Also, your doctor may be reluctant to deal with your health care agent if there are too many restrictions on his or her authority.
Your health care power of attorney may incorporate or be combined with an advance instruction for mental health treatment. For more information, see the section Advance Instruction for Mental Health Treatment.
Your health care power of attorney is effective when a doctor states in writing that you lack sufficient understanding or capacity to make or communicate health care decisions. You may name the doctor or doctors you want to make this determination. If you do not name a doctor or if the doctors you name are unavailable, the doctor taking care of you may decide when it is effective.
If your health care agent dies or becomes sick or incapacitated, or if he or she simply is unavailable or refuses to act, your health care power of attorney will have no legal effect. To avoid this problem, you may name one or more substitute health care agents. Your substitute health care agents will serve in the order you have listed them in your health care power of attorney.
A durable power of attorney is a document used to give someone the legal authority to act on your behalf. A general durable power of attorney gives someone (called your "attorney-in-fact") broad powers to handle your affairs, including your property and finances. How does the health care power of attorney work if you have given someone a durable power of attorney?
You may include a health care power of attorney in your durable power of attorney. If you choose this method, the same person who has authority to handle your financial and other personal affairs will have the authority to make your health care decisions. One document covers everything.
Or, you may choose to name a health care agent in a separate health care power of attorney. A health care power of attorney does not affect the nonhealth care powers granted to your attorney-in-fact under a general durable power of attorney. However, if you give health care powers to both your attorney-in-fact and health care agent, your health care agent's power is superior. You may name the same person to serve in both capacities.
There are several reasons why you might consider having a separate document to cover your health care decisions.
The differences between a general durable power of attorney and a health care power of attorney may create unnecessary confusion if they are combined into one document.
For more information, see the section, Durable Power of Attorney.
If the court appoints a guardian of the person (someone to take care of your physical needs) or a general guardian (someone to take care of both you and your property), your health care power of attorney will cease to be effective. To protect your choice of health care agent, you may use your health care power of attorney to recommend that your health care agent be appointed as your guardian of the person if you are declared legally incompetent.
If there is a conflict between your living will and your health care power of attorney, your living will controls. If you don't have a living will, and you have a health care power of attorney that defines a procedure for terminating life support systems, your health care agent may exercise his or her decision-making authority upon the direction and under the supervision of your attending physician. If you do not have a living will and your health care power of attorney does not define a procedure for terminating life support, then the procedure provided by law would apply.
You may revoke your health care power of attorney at any time, so long as you are able to make and communicate your medical care decisions. The revocation may be in writing or by any means that you are able to communicate your intent to revoke to your doctor and health care agent. Also, you revoke a health care power of attorney by signing another health care power of attorney. Revocation is effective only after you have notified your doctor and each named health care agent. Finally, your death revokes your health care power of attorney.
A custodial parent of a minor child may grant an agent full power and authority to consent to and authorize health care for a minor child, except for the withholding or withdrawal of life sustaining procedures.
Statutory form for a health care power of attorney, post October 1998 (includes language for use with an advance instruction for mental health treatment).
References from the North Carolina General Statutes:
Article 3. Health Care Powers of Attorney.
32A-15. General purpose of this Article.
32A-16. Definitions.
32A-17. Who may make a health care power of attorney.
32A-18. Who may act as a health care attorney-in-fact.
32A-19. Extent of authority; limitations of authority.
32A-20. Effectiveness and duration; revocation.
32A-21. Appointment, resignation, removal, and substitution.
32A-22. Relation of the health care agent to a court-appointed fiduciary and to a general attorney-in-fact.
32A-24. Reliance on health care power of attorney; defense.
32A-25. Statutory form health care power of attorney.
32A-26. Health care power of attorney and declaration of desire for natural death.
Article 4. Consent to Health Care for Minor.
32A-28. Purpose.
32A-29. Definitions.
32A-30. Who may make an authorization to consent to health care for minor.
32A-31. Extent and limitations of authority.
32A-32. Duration of authorization; revocation.
32A-33. Reliance on authorization to consent to health care for minor.
32A-34. Statutory form authorization to consent to health care for minor.
Prepared by Carol A. Schwab, J.D., LL.M., Professor and Extension Specialist, NC State University.
This publication is provided as a public service and is designed to acquaint you with certain legal issues and concerns. It is not designed as a substitute for legal advice, nor does it tell you everything you may need to know about this subject. Future changes in the law cannot be predicted, and statements in this publication are based solely on the laws of North Carolina in force on the date of publication.
Date: July 2000
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