A Healthcare Power of Attorney is a legal document created by an individual (Principal) who assigns someone else (Agent or Attorney-in-Fact) to make vital medical decisions regarding their health should they become incapacitated. The agent’s powers are broad, and the principal can grant them full reign to give, withhold, or withdraw medical treatment.
Although the agent can legally obtain this authority, they must act in the principal’s best interest. Understanding the depth of this document and selecting the right agent is crucial to avoid handing over unnecessary power, which could lead to abuse. Choose an agent to ensure you’re in good hands if you become unable to communicate your wishes.
What Is a Living Will in North Carolina?
When you think of wills, you may be imagining a document that directs people in splitting up your estate after your death. A living will is a legal document that outlines your preferences for medical treatment in situations where you are unable to express your wishes and you are facing a terminal or incurable condition.
This might include scenarios such as being in a coma, suffering from a terminal illness, or experiencing severe cognitive decline. By clearly stating your desires, a living will ensures that your health care decisions are respected and followed by medical professionals when your chances of recovery or survival are low.
What Issues Can Be Addressed in a Living Will?
For example, your living will might specify whether you want life-sustaining treatment, such as artificial respiration or feeding tubes, to be used if you are in a vegetative state. It can also address pain management, organ donation, and end-of-life care.
Having these preferences documented in a living will not only guarantees that your wishes are honored but also alleviates the burden on your loved ones from making these tough decisions during emotionally challenging times.
North Carolina Law on Living Wills
In North Carolina, living wills are governed by specific legal requirements that ensure they are valid and enforceable.
According to state law, a living will must be:
- In Writing: The document must be typed or written clearly.
- Signed by the Declarant: You must sign your living will in the presence of two qualified witnesses.
- Notarized: A notary public must verify your signature and the witnesses’ signatures.
- Clear in Intent: The language used in the document must be specific about your medical preferences and end-of-life care decisions.
Our team of experienced living will attorneys in Mecklenburg County are well-versed in these requirements and can ensure that your living will complies with North Carolina law. We can help you make a reliable guide for your health care providers.
What’s the Difference Between a Living Will and a Health Care Power of Attorney?
While a living will focuses on specific medical decisions, an health care power of attorney encompasses a broader range of instructions regarding your health care.
A health care power of attorney allows you to appoint a trusted person, known as a health care agent, to make medical decisions on your behalf if you are incapacitated. In the event you are able to resume making your own health care decisions, the health care agent’s power to make decisions on your behalf ends.
What Medical Decisions Can a Healthcare Agent Make?
Since an agent can be granted vast powers regarding the principal’s medical treatment, they must act in the same way the principal would if they weren’t incapacitated. A principal could give an agent the authority to:
- Consent to withhold or provide life-prolonging treatment
- Employ or discharge health care physicians
- Consent to the principal’s admission into a health facility
- Authorize the use of certain medications
- Consent to X-rays, anesthesia, surgery, or other procedures
- Consent to an autopsy or make decisions regarding the disposition of the principal’s remains
- Signing, executing, delivering, and acknowledging various documents that allow the agent to exercise the powers granted to them in the Healthcare Power of Attorney
While this is not a comprehensive list of powers the principal can bestow upon the agent, it illustrates how much discretion a healthcare agent can possess. However, North Carolina Law prohibits deliberate acts or omissions that take the principal’s life. Agents are responsible for carrying out the principal’s wishes and facilitating the natural process of dying.
Why You Should Have a Healthcare POA
When the time comes and you’re incapacitated, the person responsible for carrying out your medical care might be in question. Surviving family members who you otherwise would have granted authority to make vital medical decisions on your behalf may not have full reign to do so—leaving other individuals in charge of your healthcare decisions.
Surviving relatives might not even be able to perform the simplest duties such as admitting you to a hospital or consenting to X-rays. North Carolina recognizes your fundamental right to control the decisions that could impact your health. Having a Healthcare POA gives you peace of mind knowing you’ll be taken care of.
What Is Required for a Valid Power of Attorney Form?
For a Healthcare Power of Attorney form to be legally binding, it must be signed in the presence of two witnesses and acknowledged by a notary. The principal has to be at least 18 years old and have the capacity to communicate their healthcare decisions. The principal’s agent must also be at least 18 years old and cannot be the principal’s healthcare provider.
What Is a Qualified Witness?
The two witnesses required to validate the POA cannot:
- Be directly related or married to the principal
- Be expected to inherit assets as part of the principal’s Will or North Carolina’s Intestate Succession Laws
- Be the principal’s physician or anyone employed by the principal’s healthcare facility
- Currently have a claim against the principal’s estate
When Is a Healthcare POA Effective?
A Healthcare POA is effective as soon as the principal’s physician or a psychologist determines they are incapacitated, meaning they cannot comprehend or communicate any decisions regarding their health or overall well-being.
Once the POA is in effect, the agent keeps their powers for the duration of the principal’s incapacitation and loses them once the principal dies. However, the principal can outline provisions allowing the agent to make decisions after their death, such as obtaining an autopsy or disposing of their remains.
If the principal regains competency and is no longer incapacitated, they can revoke their POA agreement. A primary care physician and psychologist must review this motion to revoke the POA to assess the principal’s competency.
Additionally, you can include provisions in your Healthcare POA form that address the removal of your agent.
How to Draft a Living Will and Health Care Power of Attorney
Creating a living will or health care power of attorney involves careful consideration and legal expertise. Here are the steps involved in the process:
- Assess Your Medical Preferences: Begin by thinking about your values, beliefs, and the types of medical care you would or wouldn’t want in different scenarios.
- Consult with a Health care Professional: Discuss your options with your doctor to understand the implications of certain medical treatments and procedures.
- Draft the Document: Work with a living wills lawyer in Charlotte, NC, to draft a document that clearly outlines your wishes. Our attorneys will ensure that the language is precise and legally sound.
- Choose Witnesses and a Notary: You will need two qualified witnesses and a notary public to sign and notarize your document.
- Distribute Copies: Once your living will or health care power of attorney is complete, distribute copies to your health care agent, family members, and your primary care physician to ensure they are aware of your preferences.
Considering a Healthcare Power of Attorney or Living Will? Contact Charlotte Estate Planning For Help.
Taking the time to draft a valid Healthcare Power of Attorney or living will is the only way to designate someone you trust and has your best interests in mind, who is responsible for deciding on the treatment you receive and the extent of that treatment.
Healthcare Power of Attorney lawyer Ryan Stump knows planning for times like these can be challenging. However, we also know that you could lose power over your own healthcare without proper estate planning. Contact an estate planning attorney in Charlotte, NC by calling (704) 766-8836 to discuss how to go about planning for your care should you become incapacitated or terminally ill.
