By Cowles Liipfert

By Cowles Liipfert

Health Care Power of Attorney

North Carolina authorizes Health Care Powers of Attorney to be executed, authorizing someone to make medical decisions for you, if you become unable to make or communicate your own medical decisions.

We recommend that everyone have a Health Care Power of Attorney, which frequently designates a primary agent and also back-up agents, in case the primary agent cannot be reached or cannot make a decision for you.  

The official form of Health Care Power of Attorney, as set out in the North Carolina General Statutes, is very thorough and comprehensive.  It also contains some blank spaces, in which you may add to, limit or explain your Health Care Agent’s powers in further detail if you wish to do so. 

That is, the official form may be modified to express your personal wishes, such as religious beliefs, whether or not you want to be an organ donor, or to express your funeral and burial wishes, or your desire to be cremated, if applicable.

A Health Care Power of Attorney must be signed in the presence of two witnesses and must be notarized. 

The witnesses may not be your natural heirs (such as your spouse or children, or even siblings, aunts, uncles or first cousins) or people who are beneficiaries under your Will, or employees of your doctor or a hospital or other health facility, such as a retirement or a nursing home, where you are a resident.

Advance Directive, or Living Will

Another document which you may want to have is an Advance Directive or “Living Will,” which expresses your desire not to have the dying process prolonged if you are, in the opinion of your doctor, terminally ill and likely to die soon, or if you have completely lost your mental capacity, or are unconscious and unlikely to regain consciousness.

A Living Will can empower your doctor to make a decision not to put you on life support without input from your family, but if you want family or friends to be included in that decision, you can also require the doctor to get permission from your Health Care Agent.

A Living Will does not give anyone permission to cause you to die sooner than you would have died by natural causes, even if you are in great pain and want your life to be terminated. 

A living will simply permits your health providers to allow you to die of natural causes, without putting you on life support to prolong the dying process, when you are terminally and incurably ill and likely to die in the near future, as determined by your attending physician.

A Living Will must be signed in the presence of two witnesses and must be notarized. 

The witnesses may not be your natural heirs (such as your spouse or children, or even siblings, aunts, uncles or first cousins) or people who are beneficiaries under your Will, or employees of your doctor or a hospital or other health facility, such as a retirement or a nursing home, where you are a resident.

Combined Health Care Power of Attorney and Living Will

The  Health Care Power of Attorney and Living Will may be combined into one document, provided that the combined document complies with all the requirements for both separate documents.

Authorization to Share Confidential Health Care Information

To move on to another legal document, please be aware that the HIPAA laws are intended to protect the health care privacy of patients from people who are not authorized by the patient to have that information. 

Usually when a competent patient is admitted to a medical facility, he or she can give permission for the hospital to share his or her medical information with specific individuals. However, in case you are not able to give permission at the time of your admission, it is a good idea for you to have signed an Authorization to Share Confidential Health Information ahead of time, which can be used if necessary, when you are later admitted to a hospital or other health care facility.

Do Not Resuscitate Order (DNR) and Medical Orders for Scope of Treatment (MOST) Forms

In North Carolina a Do Not Resuscitate (DNR) Order is a medical order signed by a physician, which alerts medical personnel that a patient does not want cardiopulmonary resuscitation (CPR) in the event of medical emergency, such as a cardiac or respiratory arrest. 

In North Carolina a physician may issue a DNR Order or a Medical Order for Scope of Treatment (MOST) Form, usually printed on brightly-colored paper, which are kept with the patient’s medical records. 

The MOST form covers the DNR order, in addition to other end-of-life treatments, it informs medical personnel how to honor the wishes of the patient. 

The patient (or his or her authorized health care agent) and attending physician must sign a MOST form.

These forms are prepared by the physician and not by the attorney for the patient.

The form does not replace a Living Will, but translates the patient’s wishes into a medical order, even if the patient is transferred from one medical facility to another.

Euthanasia or Assisted Suicide or Death

Causing someone to die sooner than they would if they died of natural causes is commonly called “Euthanasia,” or “assisted suicide/death,” which would be a crime under North Carolina law.

For about ten years only two states allowed assisted suicide – Oregon and Washington. 

In recent years several other states or jurisdictions in the United States now allow assisted suicides – the most recent being New Jersey (effective 08/01/2019) and Maine (effective 01/01/2020) – and legislation has been proposed in many other states.

Even the states which permit assisted deaths recognize that the power to terminate someone’s life might be abused, and there are safeguards in those state laws: most apply only to persons who are residents of those states, and the patient must be found to be likely to die within a relatively short period of time, and to be of sound mind and not clinically depressed when they make the decision to proceed, as determined by medical opinion. 

At the current time, no states permit an individual’s decision for Euthanasia or assisted death to be made by someone else, under an advance directive.

To the contrary, the individual must be competent and able to express his or her wishes at the time of his or her request, either verbally or non-verbally, as determined by medical or psychiatric examination.     

It is suggested that you get an attorney to assist you in drafting Durable Powers of Attorney, Health Care Powers of Attorney, Advanced Directive (Living Will), and HIPAA Authorization to Release Confidential Health Care Information.