When I was in elementary school, I thought that the world could one day be changed by nuclear war. Then the Soviet Union fell apart. Later, I though Y2K might disrupt something. I’m not sure what. Maybe my dial up internet. For the next few years, the world seemed susceptible to terrorism. But most of my concerns during this century have been more personal than global. Other than the occasional natural disaster and the inevitable ebbs and flows of the economy, I felt like I had some level of control. I never seriously thought about the possibility of a virus that could shake the whole world. What else out there is beyond our control? We don’t know. But it shows why we need to plan for the unexpected.
For many of you reading this, we have already planned to prevent a lot of possible problems. And we built in as much flexibility as possible. I am going to do a few posts to try to explain some of those protections. Most of the questions I have received in the last couple of weeks have been related to health care documents. So, I will start with Health Care Powers of Attorney (“HCPOA”).
North Carolina recognizes that your right to control your medical care is a fundamental right, and that you should be able to choose who may exercise this right. If you are unable to make those decisions, the Health Care Agent named in your HCPOA will be able to make those decisions. However, there is one exception. If you are declared incompetent and the Court appoints a guardian of your person or a general guardian, the Court can suspend your health care agent’s right to make decisions. This should not be an issue if you have a comprehensive estate plan, because one of our primary goals when doing incapacity planning is to avoid the need for guardianship. Your HCPOA will also name the person you wish to be nominated as your guardian if a guardianship is required. The Court is required to make its appointment in accordance with your wishes unless there is good cause to appoint someone else.
An adult who can make and communicate health care decisions can also make a HCPOA. If you have not named an agent with powers to make decisions, your spouse would be next in line, followed by a majority of your living parents and adult children. This means that it is more important to have a HCPOA if you want someone other than your spouse or a majority of your children to make decisions. But you should not presume that it would be easy or quick to identify your reasonably available living parents and adult children. It is easy and efficient to name a Health Care Agent and a backup. You may appoint anyone who is over 18 years of age and is not providing health care to you for pay. Your HCPOA may also contain provisions relating to the appointment, resignation, removal and substitution of your Health Care Agent. We usually state that the named Agents will serve alone, in the order named if reasonably available and willing and able to serve.
You can limit your Health Care Agent’s authority or give full power and authority to make decisions you could have made for yourself. This can include the power to authorize withholding or discontinuing life-prolonging measures. However, you may also specify your end-of-life decisions in a separate Advanced Directive for a Natural Death, or Living Will. Your HCPOA can address mental health treatment, or you may give separate instructions for Mental Health Treatment. Your HCPOA may also authorize your Health Care Agent to exercise any rights you may have with respect to anatomical gifts, the authorization of any autopsy, and the disposition of your remains.
Your HCPOA will become effective when your attending physician determines in writing that you lack sufficient understanding or capacity to make or communicate decisions relating to your health care, and will continue to be in effect during your incapacity. You may also designate a specific physician to make this determination. However, you should consider the possibility that your designated doctor is sick, on vacation, or even retired when the decision needs to be made.
Your HCPOA is revoked at your death, except for purposes of dealing with anatomical gifts, autopsy, or disposition of remains. You may otherwise revoke your HCPOA at any time, so long as you have the ability to make and communicate health care decisions. You may revoke your HCPOA by signing an instrument specifically revoking the HCPOA, by executing a new HCPOA, or in any other manner by which you are able to communicate an intent to revoke. The revocation is effective only upon communication by you to each Health Care Agent and to your attending physician. If you name your spouse as Health Care Agent, and there is later an “entry by a court of a decree of divorce or separation,” then your spouse is removed as your Health Care Agent. Simply living apart is not sufficient.
A HCPOA is one of the simplest documents that you need in your estate plan. However, it is also one of the most important. HCPOAs can be found in various forms all over the internet. But downloading and printing a document doesn’t make it effective. HCPOAs must be executed with proper formality and should be a part of an overall estate plan.