North Carolina’s Medical Directives, Part 2: Health Care Powers of Attorney
In last month’s article, I talked about the living will – an incredibly important document that allows individuals to tell the world whether they’d like to remain on life support or be allowed to die naturally if they are ever incapacitated and being kept alive by artificial means. In addition to living wills, North Carolina law recognizes another kind of medical directive document which you should expect to find in any comprehensive estate plan. That document is the health care power of attorney, which is the subject of this month’s article.
The health care power of attorney works by establishing a principal-agent relationship – a relationship where one person (the “principal”) designates another person (the “agent”) to act on the first person’s behalf. By signing a health care power of attorney, the principal essentially says, “I (the principal) designate the following person (the agent) to make health-care-related decisions for me in the event I cannot make those decisions for myself.” With this relationship in place, the principal can trust that if he or she is unable to express his or her own health care wishes, a trusted, hand-selected agent will be able to carry out the principal’s wishes instead.
I should emphasize here that the terms of the health care power of attorney do not take effect until the principal has been determined by a physician to “lack[] sufficient understanding or capacity to make or communicate decisions relating to the health care of the principal[.]” In other words, even if a person has executed a health care power of attorney, that person will continue to be in charge of their own medical care for as long as they have the capacity to do so. It is only when a physician has determined that the principal can no longer make or communicate health care decisions on their own that the agent’s authority under the health care power of attorney is triggered.
The law allows an agent acting under a health care power of attorney to have broad powers, stating that an agent may be given “full power and authority to make health care decisions to the same extent that the principal could make those decisions for himself or herself if he or she had capacity to make and communicate health care decisions[.]” A principal may, however, choose to put limitations on the agent’s authority so that the agent cannot authorize medical intervention that the principal would not have authorized him- or herself. The principal can also include instructions to their agent to help guide the agent’s decision making.
A health care power of attorney’s utility does not end at the principal’s death. Although the principal’s death means there are no more medical decisions for the agent to make, there are still decisions to be made about the principal’s remains, and these decisions can be made by the agent. Using a health care power of attorney, the principal may allow the agent to (i) make anatomical gifts (i.e. organ donation or donation of the principal’s body for anatomical study), (ii) authorize an autopsy, and (iii) direct the disposition of the principal’s remains. Here again, the principal can give instructions to the agent or put limitations on the agent’s power. It is common, for example, for a principal to give specific instructions regarding burial vs. cremation and where the principal’s remains should be put to rest.
If a person does not have a health care power of attorney in place and becomes unable to make or communicate their own health care decisions, the law has a system in place to identify one or more decision makers to act on the person’s behalf. The law’s default system is better than nothing, but leaves much to be desired. Most people would rather choose exactly who will be making health care decisions for them and have the opportunity to limit or otherwise direct the exercise of that decision making power. People forced to rely on the law’s process for identifying decision makers in the absence of a health care power of attorney will have to hope that the decision makers identified by the law (i) have good judgment, (ii) are aware of the person’s desires regarding medical care, and (iii) are willing to carry out those desires. Of course, the law cannot guarantee that this will be the case.
While a health care power of attorney is the sort of document you sign and hope you never need to use, there is great comfort in knowing that your hand-picked agent will be acting in accordance with your documented instructions should something unfortunate ever happen. That’s part of the reason why so many attorneys agree that health care powers of attorney belong in every estate plan. If you would like to learn more about health care powers of attorney and all of the other documents you’ll find in a comprehensive estate plan, I invite you to call or email me to schedule a free consultation.
The information contained in this blog post is intended only as general legal information and should not be construed as formal legal advice on any matter, nor should its presentation be construed as intent on the part of The Law Office of Ryan A. Layton, PLLC to form an attorney-client relationship with any user of this website. For more information, please see this disclaimer.