Health Care Powers of Attorney & Living Wills

by Jim Slaughter

Updated from "Several Important Documents Govern Your Medical Decisions" in The Business Weekly of the Greensboro News & Record

You know you should have will.  But do you know you should also have a power of attorney, health care power of attorney, Living Will, and financial inventory?  A Wall Street Journal article noted that 80 percent in one survey had at least one document on this list. Unfortunately, less than 20 percent had all documents.

The least known documents on this list are the health care power of attorney and the Living Will. Each document governs medical decisions, but they have different purposes.  Neither is difficult to obtain. Both are invaluable.

Health Care Power of Attorney

The North Carolina statutory health care power of attorney states that the powers granted are "broad and sweeping." The statute confers at least the following powers to the health care agent:

  • To request, review, and receive any medical information
  • To consent to the disclosure of medical and hospital records
  • To employ and discharge health care providers
  • To authorize admission and discharge from hospitals, nursing or convalescent homes, hospice, long-term care facilities, or and other institutions
  • To consent to or withdraw consent for diagnostic and treatment procedures
  • To consent to measures for relief of pain
  • To authorize the withholding or withdrawal of life-prolonging measures
  • To authorize an autopsy or direct the disposition of remains
  • To take any lawful actions necessary to carry out the health care power of attorney.

Any of these powers in the statutory health care power of attorney can be removed. In addition, other similar powers can be included in the health care power of attorney.

A health care power of attorney must be witnessed by two individuals and notarized. Certain individuals are excluded as witnesses. Basically, the witnesses should not be related to you by blood or marriage; entitled to any part of your estate; be your attending physician, an employee of any nursing home or adult care home where the principal resides; or have a claim against you at the time the health care power of attorney is executed.

A health care power of attorney is not effective immediately. Instead, the document becomes effective when the physician designated in the power of attorney determines that you lack sufficient understanding or capacity to make health care decisions. If no such physician is designated, the health care power of attorney can provide that a designated person can make this decision.

Once created, a health care power of attorney remains in force until revoked by the principal. Revocation can be accomplished in several ways. A document of revocation can be executed and acknowledged by the principal.  A new health care power of attorney revokes any prior instrument. The statute also allows for revocation "in any other manner" by which the principal communicates an intent to revoke. This revocation must be communicated both to the health care agent as well as to any attending physician.

Living Will

The advantages of a Living Will can be seen in several publicized cases. Nancy Cruzan, who did not have a Living Will, was kept alive for seven years despite repeated requests from her family that she be allowed to die. She was eventually allowed to die after a court determined there was "clear and convincing" evidence that she would not want to be kept alive in her vegetative state. In contrast, former President Richard Nixon was not put on a ventilator specifically because he had a Living Will.

North Carolina has recognized an individual's right to a natural death since 1977. Our state has enacted specific statutes that govern Living Wills. Unlike health care powers of attorney, the exact wording of the statute should be used in preparing a Living Will. Forms for Living Wills are available from most attorneys, area hospitals, the N.C. Agricultural Extension Service, and many Legal Services offices.

The "Advance Directive for a Natural Death" requires that the declarant is of sound mind. The document then provides "directions about prolonging my life . . . IF my attending physician determines that I lack capacity to make or communicate health care decisions and" the individual:

  1. has an incurable or irreversible condition that will result in death within a relatively short period of time
  2. becomes unconscious and the health care providers determine to a high degree of medical certainty that the individual will never regain consciousness
  3. suffers from advanced dementia or any other condition which results in substantial loss of cognitive ability and the health care providers determine that, to a high degree of medical certainty, the loss is not reversible.

As with a health care power of attorney, the declarant has control over what actions will or will not be taken. For example, the declarant can choose whether or not life-prolonging measures "may" or "shall" be withheld or withdrawn. In addition, a Living Will can specifically direct that the declarant receive both artificial hyrdation and artificial nutrition (for example, through tubes), only artificialy hydration, or only artificial nutrition. 

A Living Will must also be witnessed by two individuals and notarized. As with a health care power of attorney, certain individuals are excluded as witnesses.

Once signed, a Living Will remains in effect until revoked by the declarant. Revocation can be accomplished by a communication to the attending physician that the document is revoked. A Living Will can be revoked without regard to the declarant's mental or physical condition.

North Carolina statutes provide that a health care power of attorney can be combined with or incorporated into a Living Will. However prepared, these documents can minimize family squabbles and ease the terrible burden on loved ones during medical crises. Both the health care power of attorney and the Living Will tell your physician and family your desires when you are no longer able to do so.

Once prepared, such documents should be given to your agent and doctor. Make sure your agent knows where the originals are stored and can gain access, if necessary. The originals are of little use in a safe-deposit box if your agent cannot get to them.

Articles are intended to provide general information and are not legal advice or a legal opinion. Specific questions should be directed to an attorney at Law Firm Carolinas or to another lawyer.

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