North Carolina General Statute 32A Article 3 creates the framework for health care powers of attorney. As with powers of attorney, the statute lays out what is necessary to create and execute a health care power of attorney, and the powers and authority conveyed under such an instrument. With this document, the person to whom the power is granted is called the “health care agent;” the person granting the authority is the “principal.”
Health care powers of attorney are generally only effective upon the incapacity of the principal. The determination of incapacity is, by statute, made by the principal’s attending physician. This can be changed by language that either names the doctor who is to make such a determination, or by requiring more than one doctor make the determination of incapacity.
A health care power of attorney is critical if a person desires for someone else to have the authority to make medical decisions for them in the event they are unable to make them on their own. As stated above, powers of attorney generally do not have health care provisions, and therefore the attorney-in-fact cannot make health care decisions.
The authority granted under a health care power of attorney can be as broad or as limited as the principal desires, although it is suggested that limitations be kept to a minimum in order to assure that the health care agent has the authority to carry out the wishes of the principal.
Generally, health care powers of attorney grant the health care agent the authority to make all medical decisions that the principal could make. Examples include approving or disapproving medical treatments, surgery, x-rays and the like, hiring and firing doctors, and approving admission to facilities. Additionally, the health care agent can make decisions regarding the donation of organs and the disposition of remains.
Health care powers of attorney often incorporate a living will provision, which is described in a separate North Carolina statute. This provision sets out your wishes regarding end of life decisions, and is very important for conveying these decisions to your family, who will need that direction when faced with the end of your life. Make it a point to discuss these wishes with your family.
Ray is a native of Alamance County and has been practicing law over 25 years. He is a graduate of Elon College (Elon University) and the Norman Adrian Wiggins School of Law at Campbell University.
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