Making Your Own Medical Decisions When You Can’t Speak: The Health Care Power of Attorney & Living Will

by Brad Champion

North Carolina law provides two important means for people to control their own medical treatment if they become incapacitated. Given the ease with which these tools can be utilized, anyone who has strong feelings about their personal medical decisions should consider having a health care power of attorneyand a living will in case they become unable to make medical decisions for themselves.

Despite the awkward name, a health care power of attorney is nothing more than a designation of one or more people to make medical decisions for you once you become unable to make them for yourself. North Carolina law provides a standard format health care power of attorney, including instructions for completing the document. You can alter the format to suit your needs, but you need to be careful to comply with North Carolina law.

First, to draw a health care power of attorney, you must be 18 years old, and be able to understand and communicate health care decisions. Next, you must select a health care agent. This person must also be at least 18 years old, and competent, and this person may not provide you with health care services for money. It’s also wise to name one or more successors to the health care agent, since the health care power of attorney is of no use when the agent dies and there is no successor. For that reason, married people especially should identify successor health care agents in case both spouses become seriously ill or injured. You can name more than one agent to operate at the same time, but there is the obvious difficulty of two or more people trying to make decisions about your health care.

Only after a doctor confirms, in writing, that you no longer have the capacity to make or communicate your own health care decisions can your agent step in and begin to make decisions for you. You can also designate which doctor shall determine when your designated health care power of attorney becomes effective. You can even choose more than one doctor to determine when you become unable to decide for yourself, but each of them must agree before your health care agent takes charge of decision making. Also, if you don’t have a designated doctor, or the designated doctor is somehow prevented from determining your capacity, an attending physician can make the decision.

As for decision making content, you decide how much authority to give your health care agent. You can give as much authority to make medical decisions as you want. You may also limit the agent’s authority. Often, when limiting the agent’s power, a person will give medical directives – listing treatments that you do or do not want when you become sick. You can even deny authority under certain circumstances.

You can revoke the agent’s authority by creating another health care power of attorney or a written document showing your desire to revoke. You can also revoke authority in any other way that communicates your desire to revoke – so long as you tell your agent and your attending physician. Of course, your death revokes the heath care power of attorney, as does the appointment of a guardian named on your behalf. For married people, where you and your spouse/health care agent become divorced or separated and you do not have an alternative named, the health care power of attorney is revoked.

living will is not a will in the traditional sense. It is actually a document that states your desire for a natural death under certain limited circumstances. If you execute a living will, you do not want your life prolonged artificially when there is no reasonable hope of recovery. North Carolina law gives a doctor authority to withhold or discontinue medical life support where you have properly executed a living will.

The law requires that you are either (1) in a persistent vegetative state or (2) you are incurably and terminally ill. Two doctors must diagnose you as being in either of these conditions, and if so, life support can be withheld or removed without threat of legal sanction.

As with the health care power of attorney, there is a living will format set out by statute; but other formats can be used as long as they comply with North Carolina law.

End of life medical decision making is in some respects a fundamental right. More important, many have strong opinions about their medical care once they become incapacitated. North Carolina law gives you options to retain control of your medical care once you become unable to speak for yourself. The health care power of attorney and living will give you this power.

Brad Champion is an associate with Knox Law Center. The firm’s website is Opening soon is the newest office in Denver located at Hwy 16/73- Waterside Crossing. He can be reached at 704-315-2363 or 866-704-9059 (Toll free).

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