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Health Care Power of AttorneyA Guide for North Carolinians -- Planning Your EstateWhat is a Health Care Power of Attorney Who May Make a Health Care Power of Attorney Choosing Your Health Care Agent How Much Authority Your Agent Has When is a Health Care POA Effective If the Health Care Agent is Unwilling or Unable to Act Coordinating With a Living Will Consent for Health Care to Minor North Carolina Health Care POA Form
Introduction
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 this person. This publication explains what a health care power of
attorney is and how it is used.
What is a Health Care Power of Attorney
A health care power of attorney is a document that
allows someone to make medical decisions for you if you cannot make them
yourself. You must sign the document in the presence of two qualified witnesses,
and it must be notarized. The form is provided by Section 32A-25, North Carolina
General Statutes. Other forms may be used as long as they comply with the
requirements of the statute. If you use a form, read and understand all
provisions before signing. Your lawyer can explain and, if necessary, modify the
available forms.
Who may make 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 may appoint any competent person who is at least
18 years old and who is not providing paid health care to you. The person you
appoint is called 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 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.
How much authority does it give
your health care agent?
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, a too-complicated health care power of attorney may leave your doctor
unsure as to which decisions may be made by your health care agent.
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.
How is a health care
power of
attorney revoked?
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.
What happens if
your health
care agent is unable or unwilling to act?
If your health care agent dies or becomes sick or
incapacitated, or if he or she simply 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.
How
does the health care power of attorney work if you have given someone a durable
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.
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 non-health 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.
·
A general
durable power of attorney must be registered with the Register of Deeds Office,
which makes it a public record. Your health care power of attorney may contain
medical information that you may want to keep private. A health care power of
attorney does not have to be registered with the Register of Deeds Office.
·
A general
durable power of attorney may be effective upon signing or only if you become
incompetent. However, a health care power of attorney is effective when the
doctor determines that you are no longer capable of understanding, making, or
communicating your health care decisions.
The execution (signing) of a health care power of
attorney is different than the execution of a general durable power of attorney.
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
How does a health care power of
attorney work if the court appoints a guardian?
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.
Coordinating
with a living will
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.
Consent
to health care for minor
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.
Executing (signing) a health
care power of 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.
Conclusion
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. NOTE: Information in this section was obtained from the North Carolina State University Cooperative Extension. |
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