Healthcare Power of Attorney

A Power of attorney is a legal instrument that can help a person ensure that their wishes are honored in the event that they are in an accident and require medical attention, or are not able to make decisions for themselves, among other things. A general power of attorney allows a person (the “principal”) to designate a trusted individual to act as their agent on a variety of different property, financial and personal matters. However, the remaining two types of power of attorney allow the principal to address medical care decisions in greater detail: healthcare power of attorney and consent to healthcare for a minor.

Just because you have talked with someone you trust about what healthcare decisions you would like if you are ever unable to make them yourself, does not mean that person can act on your behalf if necessary. The healthcare power of attorney form accomplishes two things to remedy this. First, it gives the agent broad powers to make healthcare decisions for the principal when they cannot make the decision themselves or communicate a decision. Second, the healthcare power of attorney form lets the principal lay out their specific wishes on issues such as life support, treatment decisions, limitations on the healthcare attorney-in-fact’s powers for healthcare and mental health decisions, organ donation, and autopsy and disposition of remains. The directives in the healthcare power of attorney will be legally effective to the extent that the principal had not already made valid arrangements covering those topics (i.e. in a general power of attorney, driver’s license, will or living will).

Healthcare power of attorney does not impose a duty on the agent to act, but if the agent does act, they are under the obligation to use due care and act in the principal’s best interests.

People will often choose to execute a healthcare power of attorney prior to a major surgery or if they have declining health or a terminal illness. However, healthcare power of attorney can also be a good preemptive document to have completed even if a person is in wonderful health. In the unfortunate circumstance that it is needed, the healthcare power of attorney can save a person’s loved one’s significant added stress and disagreement during what will already be an undoubtedly trying time. The principal must still be competent while they execute the power of attorney.

A related document to a healthcare power of attorney is the living will. It is, quite simply, a declaration that you do not wish to be kept alive by extraordinary or artificial means. Some individuals are philosophically opposed to living wills, while others find peace of mind in knowing that they can preemptively control their ability to be kept alive against their wishes while in a vegetative state. The execution of a living will is entirely optional, but if done should be executed with as much specificity as possible to avoid misinterpretation by healthcare providers or loved ones. If you are considering a living will it is important to consult with an attorney who has experience handling such matters.

Because children are generally prohibited from carrying out legal acts, such as entering a contract, a minor under the age of 18 cannot generally legally consent to medical treatment, although there are some exceptions. Normally, a minor’s parents have inherent authority to authorize consent for their child to receive healthcare unless the minor is emancipated. When the minor’s parents are not present, the power to authorize consent for medical treatment of the minor depends on the situation. Sometimes there are occasions or situations where a child is in the care of an adult other than their parents. In these situations, sometimes a child will require medical care. A parent can choose to authorize another adult to authorize medical treatment of a child. This is a very specific type of health care power of attorney that is only applicable to children. If you are considering authorizing another adult to consent for medical treatment of your child, it is important to consult with an attorney who has experience handling such matters.

If you have a family law issue, including or involving power of attorney, it is important to speak with a local experienced family law attorney to guide you through the matter. Arnold & Smith, PLLC is a civil and criminal litigation firm in Charlotte, North Carolina. Our skilled and dedicated family law attorneys help our clients with a wide variety of family law issues including child custody and support, separation and divorce. Contact our office today at 704.370.2828 or online today to schedule your consultation with one of our family law attorneys about your case to help ensure that it receives the individualized advocacy you deserve.