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Do I need a healthcare power of attorney in North Carolina?

Photo by Alex Proimos, Flickr

Photo by Alex Proimos, Flickr

Yes! Even if you have a standard power of attorney in place, you will want to execute a healthcare power of attorney (“HCPOA”) to provide guidance to your doctors and loved ones about your healthcare desires.

What is a healthcare power of attorney?

A HCPOA is a document that authorizes someone you have selected (your “healthcare agent”) to make decisions about your healthcare if a doctor determines you are unable to make or communicate healthcare decisions on your own. Some HCPOA documents in North Carolina also include “living will” provisions where you can include directions about your desires regarding life support. You can also include directions about organ donation, autopsy, disposition of remains, and funeral arrangements.

Why would I want a healthcare power of attorney?

If you remember anything about the cases of Karen Ann Quinlan, Nancy Cruzan, Terri Schiavo, or Marlise Munoz, the reasons for executing a HCPOA should become clear. You want to avoid adding legal complexities on top of the difficulties of a serious illness or injury. Putting a healthcare power of attorney in place in advance gives your loved ones certainty that they are following your wishes.

Won’t my family will make decisions for me?

Maybe, but maybe not. Doctors will not always comply with a family’s wishes. Sometimes family members will not be able to agree on the best course of action. It is best to execute a HCPOA in order to avoid these fights and the potential for a lengthy court battle.

What if there is no one I want to act as my healthcare agent?

 Your healthcare agent should be someone trustworthy and sensible who you trust to follow your wishes. The HCPOA can be drafted in such a way that the discretion of the healthcare agent is limited. You can also include instructions about particular procedures that the healthcare agent is required to follow. If you are having trouble finding someone that you would be comfortable naming as your healthcare agent, you should consult with your doctor or lawyer to help decide how to find a trustworthy person to hold this important power.

Sometimes people are uncomfortable appointing a healthcare agent because they don’t want to put the burden of “pulling the plug” on their loved ones. While it is important to consider whether your healthcare agent will be emotionally capable of carrying out your instructions, the truth is that executing a HCPOA will remove a burden from your loved ones, not increase it. Without a HCPOA, your family will be forced to make decisions by guessing how you would want your care to proceed. When you have a HCPOA in place, you have made the decisions for them and they can be confident that they are carrying out your wishes.

Once I have a healthcare power of attorney, what do I do with it?

 A HCPOA is only useful if other people know it exists! You should have an in-depth discussion about your desires with your healthcare agent before they are appointed. After the HCPOA is executed, the healthcare agent should get a copy. Your primary care physician should also receive a copy, and you should discuss the implications of the document in order to ensure that your doctor understands your wishes and will comply with them. You will want to bring a copy of the HCPOA whenever you are seeking medical care, including going to the hospital.

Perhaps the most important thing to do is to discuss your desires and the effect of the HCPOA with your loved ones. If you have discussed your values and goals, as well as the specifics of your opinions on various types of treatments, your loved ones will be better equipped to work with your health care providers to make decisions that you would have made for yourself.

Can I revoke a healthcare power of attorney once I’ve signed it?

 Yes, you can revoke the HCPOA at any time, as long as you have the capacity to make and communicate decisions about your healthcare. Revocation can be accomplished in any manner that communicates your intent to revoke to your doctor and the healthcare agent. Divorce does not revoke a HCPOA executed appointing your spouse as your healthcare agent as long as an alternate agent has been named in the document. Instead, the spouse’s authority would be terminated upon entry of a decree of divorce or separation and the alternate agent would assume the power.

How do I get a healthcare power of attorney?

 Though the North Carolina General Assembly has created statutory HCPOA and living will forms, most estate planning attorneys have developed their own combined version of the forms to make the process simpler for clients and to resolve quirks and problems that were not anticipated by the legislature. An estate planning attorney can go through the HCPOA with you and explain each section of the form and the potential outcomes of each decision you make. The attorney may also suggest other estate planning documents you should consider, such as a power of attorney, will, or living trust, as appropriate.

Act now to handle this important piece of your business.  Call us and we will be happy to explain more and help you set up this important piece of your estate