Originally published as "Several Important Documents Govern Your
You know you should have will. But do you know you should also have a power of attorney, health care power of attorney, Living Will, and financial inventory? A recent Wall Street Journal article noted that 80 percent in one survey had at least one document on this list. Unfortunately, less than 20 percent had every document.
The least known documents on this list are the health care power of attorney and the Living Will. Each document governs medical decisions, but they have different purposes. Neither is difficult to obtain. Both are invaluable.
HEALTH CARE POWER OF ATTORNEY
A health care power of attorney is a document that gives another person the authority to make medical decisions on your behalf. The person signing the document, or "principal," appoints another person as an agent. The agent is also called a "health care agent" or "health care attorney-in-fact," which is different than an attorney at law. North Carolina has specific statutes that govern written health care powers of attorney. The statutes provide that the statutory language to create a health care power of attorney is optional, and that other or different language can be used. However, since specific language is given in the statute, the safest course is to use that express language.
The North Carolina statutory health care power of attorney states that the powers granted are "broad and sweeping." The statute confers at least the following powers to the health care agent:
Any of these powers in the statutory health care power of attorney can be removed. In addition, other similar powers can be included in the health care power of attorney.
A health care power of attorney must be witnessed by two individuals. Certain individuals are excluded as witnesses. Basically, the witnesses should not be related to you by blood or marriage; entitled to any part of your estate; be your attending physician, an employee of your attending physician, or an employee of a health facility in which you reside; or have a claim against you at the time the health care power of attorney is executed.
A health care power of attorney is not effective immediately. Instead, the document becomes effective when the physician designated in the power of attorney determines that you lack sufficient understanding or capacity to make health care decisions. If no such physician is designated, the health care power of attorney can provide that a designated person can make this decision.
Once created, a health care power of attorney remains in force until revoked by the principal. Revocation can be accomplished in several ways. A document of revocation can be executed and acknowledged by the principal. A new health care power of attorney revokes any prior instrument. The statute also allows for revocation "in any other manner" by which the principal communicates an intent to revoke. This revocation must be communicated both to the health care agent as well as to any attending physician.
A health care power of attorney permits someone else to make medical decisions when the principal is temporarily or permanently unable to make those decisions. A Living Will tells others that you want to die a natural death if you are terminally and incurably sick or in a persistent vegetative state from which you will not recover. A Living Will is often called a "Declaration of a Desire for a Natural Death."
The advantages of a Living Will can be seen in several publicized cases. Nancy Cruzan, who did not have a Living Will, was kept alive for seven years despite repeated requests from her family that she be allowed to die. She was allowed to die in 1990 after a court determined there was "clear and convincing" evidence that she would not want to be kept alive in her vegetative state. On the other hand, the late Richard Nixon was not put on a ventilator specifically because he had a Living Will.
North Carolina has recognized an individual's right to a natural death since 1977. Our state has enacted specific statutes that govern Living Wills. Unlike health care powers of attorney, the exact wording of the statute should be used in preparing a Living Will. Forms for Living Wills are available from most attorneys, area hospitals, the N.C. Agricultural Extension Service, and many Legal Services offices.
The "Declaration of a Desire for a Natural Death" requires that the declarant is of sound mind. The document then requests that "my life not be prolonged by extraordinary means or by artificial nutrition or hydration if my condition is determined to be terminal and incurable or if I am diagnosed as being in a persistent vegetative state."
As with a health care power of attorney, the declarant has control over what actions will or will not be taken. For example, the declarant can choose whether or not the Living Will applies to a condition determined to be "terminal and incurable." In such situations, the declarant can authorize the physician to "withhold or discontinue extraordinary means only." In addition to extraordinary means, a Living Will can specifically request that the physician "withhold or discontinue either artificial nutrition or hydration." The declarant can also choose whether or not the Living Will applies to a "persistent vegetative state." The declarant again has the opportunity to withhold extraordinary means only or both artificial nutrition and hydration.
A Living Will must also be witnessed by two individuals. As with a health care power of attorney, certain individuals are excluded as witnesses.
Once signed, a Living Will remains in effect until revoked by the declarant. Revocation can be accomplished by a communication to the attending physician that the document is revoked. A Living Will can be revoked without regard to the declarant's mental or physical condition.
North Carolina statutes provide that a health care power of attorney can be combined with or incorporated into a Living Will. However prepared, these documents can minimize family squabbles and ease the terrible burden on loved ones during medical crises. Both the health care power of attorney and the Living Will tell your physician and family your desires when you are no longer able to do so.
Once prepared, such documents should be given to your agent and doctor. Make sure your agent knows where the originals are stored and can gain access, if necessary. The originals are of little use in a safe-deposit box if your agent cannot get to them.
article is intended to provide general information about the topic discussed and
is not legal advice or a legal opinion.