What is a North Carolina Health Care Power of Attorney
Every individual in North Carolina has the right to control the decisions relating to his or her medical care. In its simplest form, a health care power of attorney is a written document whereby you designate another person to be your representative in the event of an illness or injury that prevents you from being able to communicate your desires regarding your medical care. Ultimately, a health care power of attorney can ensure that your loved ones will be able to assist with honoring your wishes as it pertains to the type and scope of medical treatment you want to receive, particularly end of life choices, when you lack enough understanding or capacity to communicate such decisions.
Requirements for a Valid North Carolina Health Care Power of Attorney
North Carolina General Statute 32A-16 sets forth numerous requirements that must be met in order for a health care power of attorney to be valid. Specifically, the following conditions must be met:
- Written: In North Carolina, the health care power of attorney must be in writing.
- Capacity: The principal, or the person making the health care power of attorney, must be 18 years of age or older and have enough understanding to make and communicate health care decisions.
- Signed: The principal must sign the health care power of attorney.
- Signed In the Presence of Two Qualified Witnesses: The principal must sign the health care power of attorney in the presence of two qualified witnesses, who believe the principal to be of sound mind, and acknowledge that he or she:
- Is not related within the third degree to the principal or principal's spouse,
- Does not have a reasonable expectation that he or she would be entitled to any portion of the estate of the principal upon the principal's death under any existing will, codicil, or the Intestate Succession Act,
- Is not the attending physician of the principal, a licensed health care provider who is a paid employee of the attending physician, or a paid employee of a health care facility or nursing home in which the principal is a patient, and
- Does not have a claim against any portion of the estate of the principal at the time of the principal's execution of the health care power of attorney.
- Acknowledged Before a Notary Public
When executed properly, the person that you designate as your agent is appointed to act for you in matters relating to your health care, which can include any care, treatment, service, or procedure to maintain, diagnose, treat, or provide for your physical, mental health, personal care, and comfort, including life-prolonging measures.
Understanding a North Carolina Health Care Power of Attorney
- Scope: In North Carolina, you may execute a health care power of attorney that grants the person you choose the full power and authority to make your health care decisions for you to the same extent that you could make those decisions for yourself if you had the capacity to do so. These broad sweeping powers could include, but are not limited to, withholding or discontinuing life-prolonging measures, exercising any and all rights you may have with respect to anatomical gifts, authorizing any autopsy, and even disposition of your remains. However, the health care power of attorney is limited to the matters addressed in it and can further be tailored to meet your wishes through the use of language that applies specific limitations and restrictions that you deem appropriate.
- Effective Date: If your health care power of attorney meets the requirements described above, it becomes effective when your physician, who you designate, determines in writing that you lack sufficient understanding or capacity to communicate decisions relating to your health care, and shall continue in effect during your incapacity.
- Revocation: If you no longer wish your North Carolina health care power of attorney to be valid, there are several ways that it can be revoked or terminated.
- Intent to Revoke by Principal: So long as you are capable of making and communicating health care decisions, you may revoke your health care power of attorney at any time by executing and acknowledging an instrument of revocation, or a subsequent health care power of attorney. This revocation becomes effective upon your communication of your intent to revoke to your named health care agents and physician.
- Divorce or Separation from Health Care Agent Spouse: Your health care power of attorney is revoked upon divorce or separation between you and your spouse where your spouse is your named health care agent. However, if your health care power of attorney designates a substitute health care agent, the substitute shall serve as the health care agent and the health care power of attorney is not revoked.
- Death of Principal: Your death revokes your health care care power of attorney.
- Death of All Named Healthcare Agents: If all of the health care agents named in your health care power of attorney die, or for any reason fail or refuse to act, your health care power of attorney is revoked.
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