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Life or Death Decisions: Healthcare Powers of Attorney

By Amy A. Edwards

Using a Healthcare Power of Attorney (HCPOA), you may designate an agent to make medical decisions for you if you are unable to do so. You must be legally competent to sign the HCPOA, but it remains in effect even if you later become legally incompetent.

When is the HCPOA Triggered?

The HCPOA becomes effective when an adult “lacks sufficient understanding or capacity to make or communicate decisions relating to [his or her] health care.” [1] You can choose the physician(s) that you trust to determine whether you are unable to make or communicate your healthcare decisions.

The Agent’s Authority

Your Health Care Agent makes decisions based on what you direct in your HCPOA. The default is to allow your agent to make any and all medical decisions for you. But it is your job to set any limits, restrictions, requirements or special conditions. Like any fiduciary, a trusted person given the ability to act on someone’s behalf, the agent must act in good faith when carrying out your instructions.

Setting Limits in Your HCPOA

  • General Health Care Decisions. Choose whether your agent has access to your medical records, can hire and fire medical providers, and the right to place you in, or release you from, a hospital or other facility, such as assisted living or nursing home.
  • Mental Health Care. Authorize or prevent certain mental health treatment, such as psychoactive medications or shock treatment. Consider whether the agent can admit you to, or keep you in, a mental health facility, and if so, your preferred facility. The state can always keep you in a facility based on civil commitment laws, for example danger to yourself or others.
  • Life Prolonging Measures. This is your right to a natural death. [2] Choose whether to allow or withhold life prolonging measures, such as a mechanical ventilator, artificial nutrition (i.e., feeding tube) or artificial hydration. Most people want “reasonable steps to keep me as clean, comfortable, and free of pain as possible so that my dignity is maintained, even though this care may hasten my death.” You can say that some/no life prolonging measures will be given in the following situations, described in that statute: An incurable or irreversible condition that will result in your death within a relatively short period of time; or You become unconscious and, to a high degree of medical certainty, will never regain consciousness; or You suffer from advanced dementia or any other condition resulting in the substantial loss of cognitive ability and that loss, to a high degree of medical certainty, is not reversible.
  • Matters of Death. If you don’t already have valid arrangements when you die, the agent can request an autopsy or even dispose of your remains (i.e., cremated or buried). You may or may not want to donate any needed organs or parts, or to donate your body. See the NC Donor Registry for information about donating.

Adding Things to Your HCPOA

Add what’s important to you. You can identify welcomed visitors at any facility where you might be. Naming a legal guardian to care for you if you are unable to do so might avoid litigation among family members about who should serve, and whether to require bond.

How Long is the HCPOA Effective?

It ends when you revoke it or die, unless you authorize him or her to do other tasks related to your final arrangements.

Why Should I Talk to an Attorney?

Sometimes people think that HCPOAs are merely forms but they don’t necessarily understand all of the language and legalese they contain. People sometimes research these issues and get information. But only an attorney can give you legal advice based on your particular circumstances, including what to do with the HCPOA after it is signed.

If you sign something that you don’t understand, it could defeat the purpose of it in the first place. That could be devastating. These documents must be properly signed and witnessed in the correct manner. An attorney can also advise you about updating or revoking the HCPOA. If you have questions about the exact meaning of medical terms and options you have for treatment, talk with your doctor.

[1] NC Gen. Stat. §32A-20
[2] NC Gen. Stat. 90-321(c)

Amy A. Edwards is a family law attorney at Amy Edwards & Associates, PLLC. She is certified by the NC State Bar Board of Legal Specialization as a Family Law Specialist, and is licensed only in NC. Laws change. This article is current as of 2018.© 

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