The concept of a Power of Attorney has been around for centuries. Common misconceptions have developed over the years as to what exactly a Power of Attorney is and the distinctions among various types of Powers of Attorney.
What is a Health Care Power of Attorney?
Similar to the General Power of Attorney, a Health Care Power of Attorney is a legal document where the Principal gives broad authority to one or more Agents to make medical decisions on their behalf.
What Powers are Granted Under a Health Care Power of Attorney?
The powers granted to an Agent under a Health Care Power of Attorney commonly allow the Agent to use broad discretion with respect to the Principal's physical or mental health, medical records and information, employment or discharge of the Principal's health care providers, consent to the Principal's admission to and discharge from a hospital, nursing home, or long-term care facility, consent to the Principal's admission to an discharge from a mental health treatment facility, authorizing administration of medications for the Principal, and consent to X-rays, anesthesia, medication, surgery, and all diagnostic or treatment procedures ordered by a licensed physician, dentist, podiatrist, or any other health care provider, among other health care-related matters.
What Is a Living Will?
Most Health Care Powers of Attorney in North Carolina also include provisions for a “Living Will” which state the Principal's desires regarding life-prolonging measures. These provisions are included within the Health Care Power of Attorney document and outline the Principal's desires in a situation where they may be on “life support.” Two (2) doctors must determine “to a high degree of medical certainty” that the Principal lacks capacity to make or communicate health care decisions and that the Principal will never regain capacity, and that one of the following circumstances is confirmed in writing:
- The Principal has an incurable or irreversible condition that will result in death within a relatively short period of time (e.g. a terminal illness such as cancer);
- The Principal becomes unconscious and will never likely regain consciousness (e.g. a coma or vegetative state); or
- The Principal has advanced dementia or any other condition resulting in the substantial loss of cognitive ability which is not likely reversible.
In any of the circumstances described above, the Principal must also be on “life support”. In the Living Will, the Principal legally dictates whether to (1) grant discretion to the Health Care Agent to make decisions regarding life-prolonging measures; (2) direct that the medical providers withhold or withdraw life-prolonging measures; or (3) direct that the medical providers prolong the Principal's life to the greatest extent possible, regardless of the chances for recovery or the cost of the medical procedures.
Ultimately, whether a Power of Attorney is designed to authorize financial or medical decisions, or for a specific or limited purpose, or whether it is springing and/or durable, it is important to carefully consider these decisions and the factors that come into play with a licensed attorney in order to ensure that the Principal's wishes are carried out in the event of incapacity. All Powers of Attorney terminate when a Principal dies, and the Agent's authority to make decisions ceases at that point. However, when appointing one or more Agents to act, it is advised to select someone who would essentially act in the way that the Principal would if they were making the decisions. Countless lawsuits are regularly filed against Agents who abuse their authority granted under a Power of Attorney, which can often be difficult, expensive, and time-consuming to rectify and recover from. We are always mindful to talk through these decisions with clients so that rather than becoming a detriment, a Power of Attorney serves as a beneficial estate planning tool.
Our attorneys are available to discuss the various powers of attorney and advise as to the best way to structure a General or Health Care Power of Attorney. Please contact out office if you wish to discuss reviewing, updating, or establishing a power of attorney.