Law Offices of Natalie J. Miller, PLLC

Picking Up Where The Living Will Ends: Health Care Powers Of Attorney

“A principal, pursuant to a health care power of attorney, may grant to the health care agent full power and authority to make health care decisions to the same extent that the principal could make those decisions for himself or herself if he or she had capacity to make and communicate health care decisions, including without limitation, the power to authorize withholding or discontinuing life‑prolonging measures and the power to authorize the giving or withholding of mental health treatment. A health care power of attorney may also contain or incorporate by reference any lawful guidelines or directions relating to the health care of the principal as the principal deems appropriate.” N.C.G.S. §32A-19(a).

The health care power of attorney can authorize or limit the agent as the principal deems appropriate. N.C.G.S. §32A-19(c). As an industry standard, the health care power of attorney usually states whether the patient desires have life-prolonging measures, or not; however, there is no requirement that a decision related to such measures be detailed in the health care power of attorney.

The General Assembly has drafted a statutory health care power of attorney form, a copy of which is attached as Exhibit B. Again, this statutory form is “optional and nonexclusive.” N.C.G.S. § 32A-25.1(b). However, as previously stated, it has been my experience that doctors are more comfortable with the standard forms and there are fewer questions associated with their use. So, for example, while a health care power of attorney from another jurisdiction may be legally valid (see N.C.G.S. §32A-27), there may be questions from the health care providers because it is in an unfamiliar format.

A health care power of attorney is effective when and if the physician or physicians designated by the principal determine in writing that the principal lacks sufficient understanding or capacity to make or communicate decisions relating to the principal’s health care, and continues in effect so long as the principal remains incapacitated. This capacity determination can be made by the principal's attending physician if the physician or physicians designated by the principal is unavailable or is otherwise unable or unwilling to make this determination or if the principal failed to designate one or more physicians or eligible psychologist(s) to make this determination. N.C.G.S. §32A-20(a).

As you can see, the health care power of attorney has more “bite” than a living will. In a health care power of attorney the patient can detail specific treatments and procedures that can or cannot be done in addition to whether the patient wants life-prolonging measures. The health care power of attorney can also address maladies and conditions other than terminal and incurable conditions, unconsciousness or severe dementia. For example, the patient can state how to address brain damage or stomach surgery even if the natural dying process has not begun. The living will does not permit such a distinction.

An agent under a health care power of attorney can weigh the pros and cons of a treatment and make a decision as long as it is in accordance with any specific provisions or limitations detailed in the health care power of attorney. In short, there can be a weighing of the burden versus the benefits with regards to any medical decision, including life-prolonging measures, as long as it is in accordance with the provisions of the health care power of attorney (and living will).

A health care power of attorney may further authorize the health care agent to exercise any and all rights the principal may have with respect to anatomical gifts, the authorization of any autopsy, and the disposition of remains; provided this authority is limited to incurring reasonable costs related to exercising these powers. N.C.G.S. §32A-19(b). It is also important to remember in this context that a health care power of attorney does not give the health care agent general authority over a principal's property or financial affairs. Id.

Categories