Medical Powers of Attorney and Directives

Who Makes Medical Decisions if there is no Health Care Power of Attorney in North Carolina?

by Rania Combs

If you have not signed a health care power of attorney, the North Carolina General Statutes will control who makes health care decisions for you. The law is inflexible and may authorize a person you would never have selected to make medical decisions on your behalf.

Power Of Attorney Document On Desk

In this article, I’ll explain what a Health Care Power of Attorney is and answer some other commonly asked questions.

What is a Health Care Power of Attorney?

A Health Care Power of Attorney is a document that allows you to give a person you choose the power to make important medical decisions for you if you are unable to make those decisions for yourself. Someone who already lacks capacity cannot grant that power. Therefore, you must sign a health care power of attorney before you become incapacitated.

However, if you become incapacitated and do not have a Health Care Power of Attorney, a family member may still have the power to consent to medical treatment on your behalf. It may just not be the person you would have preferred to act as your surrogate.

Who Can Consent to Medical Treatment If I Don’t Have a Medical Power of Attorney?

The laws governing medical decision-making if you don’t have a power of attorney are determined at the state level. Most states have established a hierarchy of default decision-makers, often starting with the patient’s spouse, followed by adult children, parents, and other close relatives. However, the specific details and order of priority can vary significantly between states, so it’s important to understand the applicable state laws where the incapacitated patient resides.

In North Carolina, NCGS Sections 90-21.13 (c) provides that if an adult patient of a hospital lacks capacity, does not have a legal guardian, and has not signed a health care power of attorney, an adult can act as a surrogate. In the order of priority, the following people can consent to treatment:

  1. A spouse.
  2. A majority of the patient’s reasonably available parents and children who are at least 18 years of age.
  3. A majority of the patient’s reasonably available siblings who are at least 18 years of age.
  4. An individual who has an established relationship with the patient, who is acting in good faith on behalf of the patient, and who can reliably convey the patient’s wishes.

If none of the people listed above are available, then an attending physician, in the physician’s discretion, can provide treatment without the consent of the patient if another doctor corroborates the attending physician’s diagnosis and the necessity of treatment, or if not doing so would endanger the life or seriously worsen the condition of the patient.

Why Do I Need a Health Care Power of Attorney?

At first glance, the statute seems to cover all the bases. If I became incapacitated, I would want my husband making important medical decisions on my behalf. Since I now have three adult children and I trust my parents, they would be able to act on my behalf.

But what if:

  1. You and your spouse get in a serious accident that incapacitates both of you?
  2. Or if you are a single parent with minor children, you do not have a good relationship with your parents?
  3. How about if you’re engaged to be married and would prefer your fiancé, rather than your parents, make medical decisions on your behalf?
  4. Or if you’d prefer that your estranged father have no say in your treatment decisions?
  5. What if you’re part of an untraditional family and would prefer your partner to make important medical decisions rather than members of your family?

Get the idea?

In these situations and many others, having a North Carolina Health Care Power of Attorney in place is the only way to ensure that the person you choose will be able to make medical decisions on your behalf.

At Rania Combs Law, we can guide you through the process of setting up the necessary legal documents to ensure your medical wishes are honored. Don’t leave these important decisions to chance or state default rules. Contact us today to secure peace of mind for yourself and your loved ones. Schedule your free consultation now and take the first step in safeguarding your health care decisions.

About Rania

Rania graduated magna cum laude from South Texas College of Law Houston and is the founder of Rania Combs Law, PLLC. She has been licensed to practice law since 1994 and enjoys helping clients in Texas and North Carolina create estate plans that give them peace of mind.

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