§§ 32A-1 through 32A-3: Repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018.

History

(G.S. 32A-1: 1983, c. 626, s. 1; 1985, c. 162, s. 1; c. 618, s. 1; 1995, c. 331, s. 1; c. 486, s. 2; 2009-48, s. 11; 2016-53, s. 5; repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018. G.S. 32A-2: 1983, c. 626, s. 1; 1985, c. 618, s. 2; 1987, c. 77, s. 1; 1991, c. 639, s. 2; 1995, c. 331, ss. 2-4; 1999-385, ss. 1, 2; 2001-413, s. 5.1; 2009-48, s. 12; 2011-284, s. 36; 2016-53, s. 6; repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018. G.S. 32A-3: 1983, c. 626, s. 1; 1985, c. 609, s. 4; 2007-106, s. 1.1; repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018.)

Cross References. - For similar current provisions, see the North Carolina Uniform Power of Attorney Act, G.S. 32C-1-101 et seq.

Editor's Note. - Former G.S. 32A-1 pertained to Statutory Short Form of General Power of Attorney. Former G.S. 32A-2 pertained to powers conferred by the Statutory Short Form Power of Attorney set out in G.S. 32A-1. Former G.S. 32A-3 pertained to provisions not exclusive; reference to Chapter 32B; limitations on authority.

§§ 32A-4 through 32A-7: Reserved for future codification purposes.

§§ 32A-8 through 32A-14: Repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018.

History

(G.S. 32A-8: 1983, c. 626, s. 1; 1991, c. 173, s. 1; repealed by 2017-153, s. 2.8, effective January 1, 2018. G.S. 32A-9: 1983, c. 626, s. 1; 1987, c. 77, s. 2; repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018. G.S. 32A-10: 1983, c. 626, s. 1; repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018. G.S. 32A-11: 1983, c. 626, s. 1; 2004-139, s. 3; repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018. G.S. 32A-12: 1983, c. 626, s. 1; repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018. G.S. 32A-13: 1983, c. 626, s. 1; 1991, c. 173, s. 2; repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018. G.S. 32A-14: 1983, c. 626, s. 1; 1985, c. 609, s. 5; 1989 (Reg. Sess., 1990), c. 992, s. 1; 2007-106, s. 1.2; 2007-484, s. 39; repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018.)

Cross References. - For similar current provisions, see the North Carolina Uniform Power of Attorney Act, G.S. 32C-1-101 et seq.

Editor's Note. - Former G.S. 32A-9 pertained to the registered durable power of attorney not affected by incapacity or mental incompetence. Former G.S. 32A-10 pertained to relation of attorney-in-fact to court-appointed fiduciary. Former G.S. 32A-11 pertained to file with clerk, records, inventories, accounts, fees, and commissions. Former G.S. 32A-12 pertained to appointment, resignation, removal, and substitutions. Former G.S. 32A-13 pertained to revocation. Former G.S. 32A-14 pertained to powers of attorney executed under the provisions of G.S. 47-115.1; reference to Chapter 32B; limitations on authority.

§§ 32A-14.1, 32A-14.2.: Repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018.

History

(G.S. 32A-14.1: 1995, c. 331, s. 5; 1999-456, s. 2; 2001-413, s. 5.2; repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018. G.S. 32A-14.2: 2009-48, s. 14; repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018.)

Cross References. - For similar current provisions, see the North Carolina Uniform Power of Attorney Act, G.S. 32C-1-101 et seq.

Editor's Note. - Former G.S. 32A-14.1 pertained to gifts under power of attorney. Former G.S. 32A-14.2 pertained to renunciation under power of attorney.

§§ 32A-14.3 through 32A-14.9: Reserved for future codification purposes.

§§ 32A-14.10 through 32A-14.12: Repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018.

History

(G.S. 32A-14.10: 1995, c. 331, s. 5; repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018. G.S. 32A-14.11: 1995, c. 331, s. 5; 1999-216, s. 7; repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018. G.S. 32A-14.12: 1995, c. 331, s. 5; repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018.)

Cross References. - For similar current provisions, see the North Carolina Uniform Power of Attorney Act, G.S. 32C-1-101 et seq.

Editor's Note. - Former G.S. 32A-14.10 pertained to gifts authorized by court order. Former G.S. 32A-14.11 pertained to appeal; stay effected by appeal. Former G.S. 32A-14.12 pertained to costs and fees.

§ 32A-15. General purpose of this Article.

1. The General Assembly recognizes as a matter of public policy the fundamental right of an individual to control the decisions relating to his or her medical care, and that this right may be exercised on behalf of the individual by an agent chosen by the individual.
2. The purpose of this Article is to establish an additional, nonexclusive method for an individual to exercise his or her right to give, withhold, or withdraw consent to medical treatment, including mental health treatment, when the individual lacks sufficient understanding or capacity to make or communicate health care decisions.
3. This Article is intended and shall be construed to be consistent with the provisions of Article 23 of Chapter 90 of the General Statutes provided that in the event of a conflict between the provisions of this Article and Article 23 of Chapter 90, the provisions of Article 23 of Chapter 90 control. No conflict between these Chapters exists when either a health care power of attorney or a declaration provides that the declaration is subject to decisions of a health care agent. If no declaration has been executed by the principal as provided in G.S. 90-321 that expressly covers the principal's present condition and if the health care agent has been given the specific authority in a health care power of attorney to authorize the withholding or discontinuing of life-prolonging measures when the principal is in such condition, the measures may be withheld or discontinued as provided in the health care power of attorney upon the direction and under the supervision of the attending physician, as G.S. 90-322 shall not apply in such case. Nothing in this Article shall be construed to authorize any affirmative or deliberate act or omission to end life other than to permit the natural process of dying.
4. This Article is intended and shall be construed to be consistent with the provisions of Part 3A of Article 16 of Chapter 130A of the General Statutes. In the event of a conflict between the provisions of this Article and Part 3A of Article 16 of Chapter 130A, the provisions of Part 3A of Article 16 of Chapter 130A control.

History

(1991, c. 639, s. 1; 1993, c. 523, s. 1; 1998-198, s. 1; 1998-217, s. 53; 2007-502, s. 1; 2008-153, s. 4.)

Editor's Note. - Session Laws 1993, c. 523, which amended this section, in s. 4 provides that powers of attorney made before October 1, 1993, remain in full force and effect.

Effect of Amendments. - Session Laws 2007-502, s. 1, effective October 1, 2007, rewrote subsection (c).

Session Laws 2008-153, s. 4, effective August 2, 2008, substituted "Part 3A" for "Part 3" three times in subsection (d).

Legal Periodicals. - For survey on living wills, see 70 N.C.L. Rev. 2108 (1992).

For comment on the standard of mental capacity in North Carolina for legal transactions of the elderly, see 32 Wake Forest L. Rev. 563 (1997).

For article, "Limiting a Surrogate's Authority to Terminate Life-Support for An Incompetent Adult," see 79 N.C.L. Rev. 1815 (2001).

For comment, "Compensating Post-Conception Prenatal Medical Malpractice While Respecting Life: A Recommendation to North Carolina Legislators," see 29 Campbell L. Rev. 761 (2007).

§ 32A-16. Definitions.

The following definitions apply in this Article:

1. Disposition of remains. - The decision to bury or cremate human remains, as human remains are defined in G.S. 90-210.121, and, subject to G.S. 32A-19(b), arrangements relating to burial or cremation.
2. Health care. - Any care, treatment, service, or procedure to maintain, diagnose, treat, or provide for the principal's physical or mental health or personal care and comfort including life-prolonging measures. "Health care" includes mental health treatment as defined in subdivision (8) of this section.
3. Health care agent. - The person appointed as a health care attorney-in-fact.
4. Health care power of attorney. - Except as provided in G.S. 32A-16.1, a written instrument that substantially meets the requirements of this Article, that is signed in the presence of two qualified witnesses, and acknowledged before a notary public, pursuant to which an attorney-in-fact or agent is appointed to act for the principal in matters relating to the health care of the principal. The notary who takes the acknowledgement may but is not required to be a paid employee of the attending physician or mental health treatment provider, a paid employee of a health facility in which the principal is a patient, or a paid employee of a nursing home or any adult care home in which the principal resides.
5. Life-prolonging measures. - Medical procedures or interventions which in the judgment of the attending physician would serve only to postpone artificially the moment of death by sustaining, restoring, or supplanting a vital function, including mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and similar forms of treatment. Life-prolonging measures do not include care necessary to provide comfort or to alleviate pain.
6. Principal. - The person making the health care power of attorney.
7. Qualified witness. - Except as provided in G.S. 32A-16.1, a witness in whose presence the principal has executed the health care power of attorney, who believes the principal to be of sound mind, and who states that he or she (i) is not related within the third degree to the principal nor to the principal's spouse, (ii) does not know nor have a reasonable expectation that he or she would be entitled to any portion of the estate of the principal upon the principal's death under any existing will or codicil of the principal or under the Intestate Succession Act as it then provides, (iii) is not the attending physician or mental health treatment provider of the principal, nor a licensed health care provider who is a paid employee of the attending physician or mental health treatment provider, nor a paid employee of a health facility in which the principal is a patient, nor a paid employee of a nursing home or any adult care home in which the principal resides, and (iv) does not have a claim against any portion of the estate of the principal at the time of the principal's execution of the health care power of attorney.
8. Advance instruction for mental health treatment or advance instruction. - As defined in G.S. 122C-72(1).
9. Mental health treatment. - The process of providing for the physical, emotional, psychological, and social needs of the principal for the principal's mental illness. "Mental health treatment" includes electroconvulsive treatment, treatment of mental illness with psychotropic medication, and admission to and retention in a facility for care or treatment of mental illness.

History

(1991, c. 639, s. 1; 1998-198, s. 1; 1998-217, s. 53; 2005-351, s. 1; 2006-226, s. 32; 2007-502, s. 2; 2020-3, s. 4.10(a).)

Editor's Note. - Session Laws 2020-3, s. 5, is a severability clause.

Effect of Amendments. - Session Laws 2005-351, s. 1, as amended by Session Laws 2006-226, s. 32, effective October 1, 2005, and applicable to powers of attorney created on, before, or after that date, added present subdivision (1) and redesignated former subdivision (1) as subdivision (1a).

Session Laws 2007-502, s. 2, effective October 1, 2007, rewrote the section.

Session Laws 2020-3, s. 4.10(a), effective May 4, 2020, added the exceptions at the beginning of subdivisions (3) and (6).

§ 32A-16.1. Health care powers of attorney executed during state of emergency.

1. The requirement of G.S. 32A-16(3) that a health care power of attorney be executed in the presence of two qualified witnesses shall be waived for all instruments executed on or after the effective date of this section and prior to termination of the state of emergency declared by Governor Roy Cooper in Executive Order No. 116, on March 10, 2020, as the same may be extended by any subsequent executive order, such that an instrument that is signed by the principal, properly acknowledged before a notary public, and otherwise executed in compliance with the provisions of this Article shall not be invalidated by the principal's failure to execute the health care power of attorney in the presence of two qualified witnesses.
2. Health care powers of attorney executed without two qualified witnesses during the time period defined in subsection (a) of this section shall contain a short and plain statement indicating that the instrument was executed in accordance with the procedures of this section.
3. This section shall expire at 12:01 A.M. on August 1, 2020; provided, however, all instruments made in accordance with this section and while this section is in effect shall remain effective and shall not need to be reaffirmed.

History

(2020-3, s. 4.10(b).)

Editor's Note. - Session Laws 2020-3, s. 4.10(e), made this section effective May 4, 2020.

Session Laws 2020-3, s. 5, is a severability clause.

§ 32A-17. Who may make a health care power of attorney.

Any person having understanding and capacity to make and communicate health care decisions, who is 18 years of age or older, may make a health care power of attorney.

History

(1991, c. 639, s. 1.)

Legal Periodicals. - For comment on the standard of mental capacity in North Carolina for legal transactions of the elderly, see 32 Wake Forest L. Rev. 563 (1997).

§ 32A-18. Who may act as a health care attorney-in-fact.

Any competent person who is not engaged in providing health care to the principal for remuneration, and who is 18 years of age or older, may act as a health care agent.

History

(1991, c. 639, s. 1.)

§ 32A-19. Extent of authority; limitations of authority.

1. 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.
2. A health care power of attorney may incorporate or be combined with an advance instruction for mental health treatment prepared pursuant to Part 2 of Article 3 of Chapter 122C of the General Statutes. A health care agent's decisions about mental health treatment shall be consistent with any statements the principal has expressed in an advance instruction for mental health treatment if one so exists, and if none exists, shall be consistent with what the agent believes in good faith to be the manner in which the principal would act if the principal did not lack capacity to make or communicate health care decisions. A health care agent is not subject to criminal prosecution, civil liability, or professional disciplinary action for any action taken in good faith pursuant to an advance instruction for mental health treatment.
3. A health care power of attorney may 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, and a health care power of attorney does not give the health care agent general authority over a principal's property or financial affairs.
4. A health care power of attorney may contain, and the authority of the health care agent shall be subject to, the specific limitations or restrictions as the principal deems appropriate.
5. The powers and authority granted to the health care agent pursuant to a health care power of attorney shall be limited to the matters addressed in it, and, except as necessary to exercise such powers and authority relating to health care, shall not confer any power or authority with respect to the property or financial affairs of the principal.
6. This Article shall not be construed to invalidate a power of attorney that authorizes an agent to make health care decisions for the principal, which was executed prior to October 1, 1991.
7. A health care power of attorney does not limit any authority in Article 5 of Chapter 122C of the General Statutes either to take a person into custody or to admit, retain, or treat a person in a facility.

History

(1991, c. 639, s. 1; 1998-198, s. 1; 1998-217, s. 53; 2007-502, s. 3.)

Editor's Note. - This section was amended by Session Laws 1998-198, s. 1, in the coded bill drafting format provided by G.S. 120-20.1. The subsection designations have been set out above at the direction of the Revisor of Statutes.

Effect of Amendments. - Session Laws 2007-502, s. 3, effective October 1, 2007, in subsection (a), deleted "understanding and" following "if he or she had" and substituted "life-prolonging measures" for "life-sustaining procedures"; deleted "sufficient understanding or" following "did not lack" in subsection (a1); inserted "provided this authority is limited to incurring reasonable costs related to exercising these powers, and a health care power of attorney does not give the health care agent general authority over a principal's property or financial affairs" at the end of subsection (b).

Legal Periodicals. - For article, "Aid in Dying in North Carolina,” see 97 N.C. L. Rev. Addendum 1 (2019).

§ 32A-20. Effectiveness and duration; revocation.

1. A health care power of attorney shall become effective when and if the physician or physicians or, in the case of mental health treatment, physician or eligible psychologist as defined in G.S. 122C-3(13d), designated by the principal determine in writing that the principal lacks sufficient understanding or capacity to make or communicate decisions relating to the health care of the principal, and shall continue in effect during the incapacity of the principal. The determination shall be made by the principal's attending physician or eligible psychologist if the physician or physicians or eligible psychologist designated by the principal is unavailable or is otherwise unable or unwilling to make this determination or if the principal failed to designate a physician or physicians or eligible psychologist to make this determination. A health care power of attorney may include a provision that, if the principal does not designate a physician for reasons based on his religious or moral beliefs as specified in the health care power of attorney, a person designated by the principal in the health care power of attorney may certify in writing, acknowledged before a notary public, that the principal lacks sufficient understanding or capacity to make or communicate decisions relating to his health care. The person so designated must be a competent person 18 years of age or older, not engaged in providing health care to the principal for remuneration, and must be a person other than the health care agent. For purposes of exercising authority described in G.S. 32A-19(b), however, a health care power of attorney shall be effective following the death of the principal without regard to the principal's understanding or capacity when the principal was living. Nothing in this section shall be construed to prevent a principal from revoking a health care power of attorney.
2. Except for purposes of exercising authority granted by a health care power of attorney with respect to anatomical gifts, autopsy, or disposition of remains as provided in G.S. 32A-19(b), a health care power of attorney is revoked by the death of the principal. A health care power of attorney may be revoked by the principal at any time, so long as the principal is capable of making and communicating health care decisions. The principal may exercise this right of revocation by executing and acknowledging an instrument of revocation, by executing and acknowledging a subsequent health care power of attorney, or in any other manner by which the principal is able to communicate an intent to revoke. This revocation becomes effective only upon communication by the principal to each health care agent named in the revoked health care power of attorney and to the principal's attending physician or eligible psychologist.
3. The authority of a health care agent who is the spouse of the principal shall be revoked upon the entry by a court of a decree of divorce or separation between the principal and the health care agent; provided that if the health care power of attorney designates a successor health care agent, the successor shall serve as the health care agent, and the health care power of attorney shall not be revoked.

History

(1991, c. 639, s. 1; 1993, c. 523, s. 2; 1998-198, s. 1; 1998-217, s. 53; 2005-351, s. 2; 2006-226, s. 32; 2011-344, s. 10; 2012-18, s. 3.11.)

Editor's Note. - Session Laws 1993, c. 523, which amended this section, in s. 4 provides that powers of attorney made before October 1, 1993 remain in full force and effect.

Effect of Amendments. - Session Laws 2011-344, s. 10, added the last two sentences in subsection (a). For effective date and applicability, see editor's note.

Legal Periodicals. - For comment on the standard of mental capacity in North Carolina for legal transactions of the elderly, see 32 Wake Forest L. Rev. 563 (1997).

§ 32A-21. Appointment, resignation, removal, and substitution.

1. A health care power of attorney may contain provisions relating to the appointment, resignation, removal and substitution of the health care agent.
2. If all health care agents named in the instrument or substituted, die or for any reason fail or refuse to act, and all methods of substitution have been exhausted, the health care power of attorney shall cease to be effective.

History

(1991, c. 639, s. 1.)

§ 32A-22. Relation of the health care agent to a court-appointed fiduciary and to a general attorney-in-fact.

1. If, following the execution of a health care power of attorney, a court of competent jurisdiction appoints a guardian of the person of the principal, or a general guardian with powers over the person of the principal, the guardian may petition the court, after giving notice to the health care agent, to suspend the authority of the health care agent during the guardianship. The court may suspend the authority of the health care agent for good cause shown, provided that the court's order must direct whether the guardian shall act consistently with the health care power of attorney or whether and in what respect the guardian may deviate from it. Any order suspending the authority of the health care agent must set forth the court's findings of fact and conclusions of law. The guardian shall act consistently with G.S. 35A-1201(a)(5). A health care provider shall be fully protected from liability in relying on a health care power of attorney until given actual notice of the court's order suspending the authority of the health care agent.
2. A principal may nominate, by a health care power of attorney, the guardian of the person of the principal if a guardianship proceeding is thereafter commenced. The court shall make its appointment in accordance with the principal's most recent nomination in an unrevoked health care power of attorney, except for good cause shown.
3. The execution of a health care power of attorney shall not revoke, restrict or otherwise affect any nonhealth care powers granted by the principal to an attorney-in-fact pursuant to a general power of attorney; provided that the powers granted to the health care agent with respect to health care matters shall be superior to any similar powers granted by the principal to an attorney-in-fact under a general power of attorney.
4. A health care power of attorney may be combined with or incorporated into a general power of attorney which is executed in accordance with the requirements of this Article.

History

(1991, c. 639, s. 1; 1998-198, s. 1; 1998-217, s. 53; 2007-502, s. 4.)

Effect of Amendments. - Session Laws 2007-502, s. 4, effective October 1, 2007, rewrote subsection (a).

§ 32A-23. Article 2, Chapter 32A, not applicable.

The provisions of Article 2 of this Chapter shall not be applicable to a health care power of attorney executed pursuant to this Article.

History

(1991, c. 639, s. 1.)

§ 32A-24. Reliance on health care power of attorney; defense.

1. Any physician or other health care provider involved in the medical care of the principal may rely upon the authority of the health care agent contained in a signed and acknowledged health care power of attorney in the absence of actual knowledge of revocation of the health care power of attorney. The physician or health care provider may rely upon a copy of the health care power of attorney obtained from the Advance Health Care Directive Registry maintained by the Secretary of State pursuant to Article 21 of Chapter 130A of the General Statutes to the same extent that the individual may rely upon the original document.
2. All health care decisions made by a health care agent pursuant to a health care power of attorney during any period following a determination that the principal lacks understanding or capacity to make or communicate health care decisions shall have the same effect as if the principal were not incapacitated and were present and acting on his or her own behalf. Any health care provider relying in good faith on the authority of a health care agent shall be protected to the full extent of the power conferred upon the health care agent, and no person so relying on the authority of the health care agent shall be liable, by reason of his reliance, for actions taken pursuant to a decision of the health care agent.
3. The withholding or withdrawal of  life-prolonging measures by or under the orders of a physician pursuant to the authorization of a health care agent shall not be considered suicide or the cause of death for any civil or criminal purpose nor shall it be considered unprofessional conduct or a lack of professional competence. Any person, institution or facility, including without limitation the health care agent and the attending physician, against whom criminal or civil liability is asserted because of conduct described in this section, may interpose this section as a defense.
4. The protections of this section extend to any valid health care power of attorney, including a document valid under G.S. 32A-27; these protections are not limited to health care powers of attorney prepared in accordance with the statutory form provided in G.S. 32A-25.1, or to health care powers of attorney filed with the Advance Health Care Directive Registry maintained by the Secretary of State. A health care provider may rely in good faith on an oral or written statement by legal counsel that a document appears to meet applicable statutory requirements for a health care power of attorney. These protections also extend to a document executed in another jurisdiction that is valid as a health care power of attorney under G.S. 32A-27. A health care provider shall have no liability for acting in accordance with a revoked health care power of attorney unless that provider has actual notice of the revocation.

History

(1991, c. 639, s. 1; 2001-455, s. 3; 2001-513, s. 30(b); 2007-502, ss. 5(a), (b).)

Effect of Amendments. - Session Laws 2007-502, ss. 5(a) and 5(b), effective October 1, 2007, substituted "life-prolonging measures" for "life-sustaining procedures" in subsection (c); added subsection (d).

§ 32A-25: Repealed by Session Laws 2007-502, s. 6(a), effective October 1, 2007.

Cross References. - As to current statutory form health care power of attorney, see G.S. 32A-25.1.

Effect of Amendments. - Session Laws 2005-351, s. 3, as amended by Session Laws 2006-226, s. 32, effective October 1, 2005, and applicable to powers of attorney created on, before, or after that date, in paragraph 2. of the form, divided the former paragraph into two paragraphs, and added the exception at the end of the first paragraph; in paragraph 3. of the form, in sub-paragraph H, deleted "to donate my organs" following "purposes," inserted "to make an anatomical gift of my organs or body, or part thereof," and made minor punctuation changes; and in paragraph 4. of the form, added sub-paragraph D.

§ 32A-25.1. Statutory form health care power of attorney.

1. The use of the following form in the creation of a health care power of attorney is lawful and, when used, it shall meet the requirements of and be construed in accordance with the provisions of this Article:
2. Use of the statutory form prescribed in this section is an optional and nonexclusive method for creating a health care power of attorney and does not affect the use of other forms of health care powers of attorney, including previous statutory forms.

HEALTH CARE POWER OF ATTORNEY

NOTE: YOU SHOULD USE THIS DOCUMENT TO NAME A PERSON AS YOUR HEALTH CARE AGENT IF YOU ARE COMFORTABLE GIVING THAT PERSON BROAD AND SWEEPING POWERS TO MAKE HEALTH CARE DECISIONS FOR YOU. THERE IS NO LEGAL REQUIREMENT THAT ANYONE EXECUTE A HEALTH CARE POWER OF ATTORNEY.
[
EXPLANATION: You have the right to name someone to make health care decisions for you when you cannot make or communicate those decisions. This form may be used to create a health care power of attorney, and meets the requirements of North Carolina law. However, you are not required to use this form, and North Carolina law allows the use of other forms that meet certain requirements. If you prepare your own health care power of attorney, you should be very careful to make sure it is consistent with North Carolina law.

This document gives the person you designate as your health care agent broad powers to make health care decisions for you when you cannot make the decision yourself or cannot communicate your decision to other people. You should discuss your wishes concerning life-prolonging measures, mental health treatment, and other health care decisions with your health care agent. Except to the extent that you express specific limitations or restrictions in this form, your health care agent may make any health care decision you could make yourself.

This form does not impose a duty on your health care agent to exercise granted powers, but when a power is exercised, your health care agent will be obligated to use due care to act in your best interests and in accordance with this document.

This Health Care Power of Attorney form is intended to be valid in any jurisdiction in which it is presented, but places outside North Carolina may impose requirements that this form does not meet.

If you want to use this form, you must complete it, sign it, and have your signature witnessed by two qualified witnesses and proved by a notary public. Follow the instructions about which choices you can initial very carefully. Do not sign this form until two witnesses and a notary public are present to watch you sign it. You then should give a copy to your health care agent and to any alternates you name. You should consider filing it with the Advance Health Care Directive Registry maintained by the North Carolina Secretary of State: http://www.nclifelinks.org/ahcdr/ ]

1. Designation of Health Care Agent.

I, ______________, being of sound mind, hereby appoint the following person(s) to serve as my health care agent(s) to act for me and in my name (in any way I could act in person) to make health care decisions for me as authorized in this document. My designated health care agent(s) shall serve alone, in the order named.


A. Name: ________________________ Home Telephone: ___________________


Home Address: __________________ Work Telephone: ____________________


__________________________________ Cellular Telephone: ______________


B. Name: ________________________ Home Telephone: __________________


Home Address: __________________ Work Telephone: ____________________


__________________________________ Cellular Telephone: _____________


C. Name: ________________________ Home Telephone: __________________


Home Address: __________________ Work Telephone: ____________________


__________________________________ Cellular Telephone: _____________

Any successor health care agent designated shall be vested with the same power and duties as if originally named as my health care agent, and shall serve any time his or her predecessor is not reasonably available or is unwilling or unable to serve in that capacity.

2. Effectiveness of Appointment.

My designation of a health care agent expires only when I revoke it. Absent revocation, the authority granted in this document shall become effective when and if one of the physician(s) listed below determines that I lack capacity to make or communicate decisions relating to my health care, and will continue in effect during that incapacity, or until my death, except if I authorize my health care agent to exercise my rights with respect to anatomical gifts, autopsy, or disposition of my remains, this authority will continue after my death to the extent necessary to exercise that authority.

1. ______________ (Physician)

2. ______________ (Physician)

If I have not designated a physician, or no physician(s) named above is reasonably available, the determination that I lack capacity to make or communicate decisions relating to my health care shall be made by my attending physician.

3. Revocation.

Any time while I am competent, I may revoke this power of attorney in a writing I sign or by communicating my intent to revoke, in any clear and consistent manner, to my health care agent or my health care provider.

4. General Statement of Authority Granted.

Subject to any restrictions set forth in Section 5 below, I grant to my health care agent full power and authority to make and carry out all health care decisions for me. These decisions include, but are not limited to:

A. Requesting, reviewing, and receiving any information, verbal or written, regarding my physical or mental health, including, but not limited to, medical and hospital records, and to consent to the disclosure of this information.

B. Employing or discharging my health care providers.

C. Consenting to and authorizing my admission to and discharge from a hospital, nursing or convalescent home, hospice, long-term care facility, or other health care facility.

D. Consenting to and authorizing my admission to and retention in a facility for the care or treatment of mental illness.

E. Consenting to and authorizing the administration of medications for mental health treatment and electroconvulsive treatment (ECT) commonly referred to as "shock treatment."

F. Giving consent for, withdrawing consent for, or withholding consent for, X-ray, anesthesia, medication, surgery, and all other diagnostic and treatment procedures ordered by or under the authorization of a licensed physician, dentist, podiatrist, or other health care provider. This authorization specifically includes the power to consent to measures for relief of pain.

G. Authorizing the withholding or withdrawal of life-prolonging measures.

H. Providing my medical information at the request of any individual acting as my attorney-in-fact under a durable power of attorney or as a Trustee or successor Trustee under any Trust Agreement of which I am a Grantor or Trustee, or at the request of any other individual whom my health care agent believes should have such information. I desire that such information be provided whenever it would expedite the prompt and proper handling of my affairs or the affairs of any person or entity for which I have some responsibility. In addition, I authorize my health care agent to take any and all legal steps necessary to ensure compliance with my instructions providing access to my protected health information. Such steps shall include resorting to any and all legal procedures in and out of courts as may be necessary to enforce my rights under the law and shall include attempting to recover attorneys' fees against anyone who does not comply with this health care power of attorney.

I. To the extent I have not already made valid and enforceable arrangements during my lifetime that have not been revoked, exercising any right I may have to authorize an autopsy or direct the disposition of my remains.

J. Taking any lawful actions that may be necessary to carry out these decisions, including, but not limited to: (i) signing, executing, delivering, and acknowledging any agreement, release, authorization, or other document that may be necessary, desirable, convenient, or proper in order to exercise and carry out any of these powers; (ii) granting releases of liability to medical providers or others; and (iii) incurring reasonable costs on my behalf related to exercising these powers, provided that this health care power of attorney shall not give my health care agent general authority over my property or financial affairs.

5. Special Provisions and Limitations.

(Notice: The authority granted in this document is intended to be as broad as possible so that your health care agent will have authority to make any decisions you could make to obtain or terminate any type of health care treatment or service. If you wish to limit the scope of your health care agent's powers, you may do so in this section. If none of the following are initialed, there will be no special limitations on your agent's authority.)

A. Limitations about Artificial Nutrition or Hydration: In exercising the authority to make health care decisions on my behalf, my health care agent:

______________ shall NOT have the authority to withhold artificial
(Initial) nutrition (such as through tubes) OR may exercise that authority only in accordance with the following special provisions:


____________________________________________________________________


____________________________________________________________________

______________ shall NOT have the authority to withhold artificial
(Initial) hydration (such as through tubes) OR may exercise that authority only in accordance with the following special provisions:


____________________________________________________________________


____________________________________________________________________

NOTE: If you initial either block but do not insert any special provisions, your health care agent shall have NO AUTHORITY to withhold artificial nutrition or hydration.


____________________________________________________________________

______________ B. Limitations Concerning Health Care Decisions. In
(Initial) exercising the authority to make health care decisions on my behalf, the authority of my health care agent is subject to the following special provisions: (Here you may include any specific provisions you deem appropriate such as: your own definition of when life-prolonging measures should be withheld or discontinued, or instructions to refuse any specific types of treatment that are inconsistent with your religious beliefs, or are unacceptable to you for any other reason.)


____________________________________________________________________


____________________________________________________________________

NOTE: DO NOT initial unless you insert a limitation.

______________ C. Limitations Concerning Mental Health Decisions. In
(Initial) exercising the authority to make mental health decisions on my behalf, the authority of my health care agent is subject to the following special provisions: (Here you may include any specific provisions you deem appropriate such as: limiting the grant of authority to make only mental health treatment decisions, your own instructions regarding the administration or withholding of psychotropic medications and electroconvulsive treatment (ECT), instructions regarding your admission to and retention in a health care facility for mental health treatment, or instructions to refuse any specific types of treatment that are unacceptable to you.)


____________________________________________________________________


____________________________________________________________________

NOTE: DO NOT initial unless you insert a limitation.

______________ D. Advance Instruction for Mental Health Treatment.
(Initial) (Notice: This health care power of attorney may incorporate or be combined with an advance instruction for mental health treatment, executed in accordance with Part 2 of Article 3 of Chapter 122C of the General Statutes, which you may use to state your instructions regarding mental health treatment in the event you lack capacity to make or communicate mental health treatment decisions. Because your health care agent's decisions must be consistent with any statements you have expressed in an advance instruction, you should indicate here whether you have executed an advance instruction for mental health treatment):


____________________________________________________________________


____________________________________________________________________

NOTE: DO NOT initial unless you insert a limitation.

______________ E. Autopsy and Disposition of Remains. In exercising
(Initial) the authority to make decisions regarding autopsy and disposition of remains on my behalf, the authority of my health care agent is subject to the following special provisions and limitations. (Here you may include any specific limitations you deem appropriate such as: limiting the grant of authority and the scope of authority, or instructions regarding burial or cremation):


____________________________________________________________________


____________________________________________________________________

NOTE: DO NOT initial unless you insert a limitation.

6.
6. Organ Donation.

To the extent I have not already made valid and enforceable arrangements during my lifetime that have not been revoked, my health care agent may exercise any right I may have to:

______________ donate any needed organs or parts; or
(Initial)

______________ donate only the following organs or parts:
(Initial)



____________________________________________________________________

NOTE: DO NOT INITIAL BOTH BLOCKS ABOVE.

______________ donate my body for anatomical study if needed.
(Initial)

______________ In exercising the authority to make donations, my health
(Initial) care agent is subject to the following special provisions and limitations: (Here you may include any specific limitations you deem appropriate such as: limiting the grant of authority and the scope of authority, or instructions regarding gifts of the body or body parts.)


____________________________________________________________________


____________________________________________________________________


____________________________________________________________________

NOTE: DO NOT initial unless you insert a limitation.


NOTE: NO AUTHORITY FOR ORGAN DONATION IS GRANTED IN THIS INSTRUMENT WITHOUT YOUR INITIALS.

7.
7. Guardianship Provision.

If it becomes necessary for a court to appoint a guardian of my person, I nominate the persons designated in Section 1, in the order named, to be the guardian of my person, to serve without bond or security. The guardian shall act consistently with G.S. 35A-1201(a)(5).

8. Reliance of Third Parties on Health Care Agent.

A. No person who relies in good faith upon the authority of or any representations by my health care agent shall be liable to me, my estate, my heirs, successors, assigns, or personal representatives, for actions or omissions in reliance on that authority or those representations.

B. The powers conferred on my health care agent by this document may be exercised by my health care agent alone, and my health care agent's signature or action taken under the authority granted in this document may be accepted by persons as fully authorized by me and with the same force and effect as if I were personally present, competent, and acting on my own behalf. All acts performed in good faith by my health care agent pursuant to this power of attorney are done with my consent and shall have the same validity and effect as if I were present and exercised the powers myself, and shall inure to the benefit of and bind me, my estate, my heirs, successors, assigns, and personal representatives. The authority of my health care agent pursuant to this power of attorney shall be superior to and binding upon my family, relatives, friends, and others.

9. Miscellaneous Provisions.

A. Revocation of Prior Powers of Attorney. I revoke any prior health care power of attorney. The preceding sentence is not intended to revoke any general powers of attorney, some of the provisions of which may relate to health care; however, this power of attorney shall take precedence over any health care provisions in any valid general power of attorney I have not revoked.

B. Jurisdiction, Severability, and Durability. This Health Care Power of Attorney is intended to be valid in any jurisdiction in which it is presented. The powers delegated under this power of attorney are severable, so that the invalidity of one or more powers shall not affect any others. This power of attorney shall not be affected or revoked by my incapacity or mental incompetence.

C. Health Care Agent Not Liable. My health care agent and my health care agent's estate, heirs, successors, and assigns are hereby released and forever discharged by me, my estate, my heirs, successors, assigns, and personal representatives from all liability and from all claims or demands of all kinds arising out of my health care agent's acts or omissions, except for my health care agent's willful misconduct or gross negligence.

D. No Civil or Criminal Liability. No act or omission of my health care agent, or of any other person, entity, institution, or facility acting in good faith in reliance on the authority of my health care agent pursuant to this Health Care Power of Attorney shall be considered suicide, nor the cause of my death for any civil or criminal purposes, nor shall it be considered unprofessional conduct or as lack of professional competence. Any person, entity, institution, or facility against whom criminal or civil liability is asserted because of conduct authorized by this Health Care Power of Attorney may interpose this document as a defense.

E. Reimbursement. My health care agent shall be entitled to reimbursement for all reasonable expenses incurred as a result of carrying out any provision of this directive.

By signing here, I indicate that I am mentally alert and competent, fully informed as to the contents of this document, and understand the full import of this grant of powers to my health care agent.
This the ______ day of ______________, 20______.
________________________ (SEAL)

I hereby state that the principal, ______________, being of sound mind, signed (or directed another to sign on the principal's behalf) the foregoing health care power of attorney in my presence, and that I am not related to the principal by blood or marriage, and I would not be entitled to any portion of the estate of the principal under any existing will or codicil of the principal or as an heir under the Intestate Succession Act, if the principal died on this date without a will. I also state that I am not the principal's attending physician, nor a licensed health care provider or mental health treatment provider who is (1) an employee of the principal's attending physician or mental health treatment provider, (2) an employee of the health facility in which the principal is a patient, or (3) an employee of a nursing home or any adult care home where the principal resides. I further state that I do not have any claim against the principal or the estate of the principal.


Date: __________________ Witness: ___________________________________


Date: __________________ Witness: ___________________________________
______________________________ COUNTY, ____________________ STATE


Sworn to (or affirmed) and subscribed before me this day by _________________

(type/print name of signer)


______________________________________________________________________________

(type/print name of witness)


______________________________________________________________________________

(type/print name of witness)
Date: ________________________ _______________________________________

(Official Seal) Signature of Notary Public

__________________, Notary Public

Printed or typed name


My commission expires: _____________________________________________

History

(1991, c. 639, s. 1; 1993, c. 523, s. 3; 1998-198, s. 1; 1998-217, s. 53; 2005-351, s. 3; 2006-226, s. 32; 2007-502, s. 6(b); 2008-187, s. 37(a).)

Editor's Note. - Session Laws 2008-187, s. 37(c) provides, in part, that: "Nothing in this section shall affect the validity of a health care power of attorney executed before, on, or after the effective date of this section [August 7, 2008]."

Effect of Amendments. - Session Laws 2008-187, s. 37(a), effective August 7, 2008, substituted "Section 5" for "Section 6" in the first paragraph of section 4 of the form. See Editor's note for applicability.

§ 32A-26. Health care power of attorney and declaration of desire for natural death.

A health care power of attorney meeting the requirements of this Article may be combined with or incorporated into a Declaration of A Desire For A Natural Death which meets the requirements of Article 23 of Chapter 90 of the General Statutes.

History

(1991, c. 639, s. 1.)

§ 32A-27. Health care powers of attorney executed in other jurisdictions.

Notwithstanding G.S. 32A-16(3), a health care power of attorney or similar document executed in a jurisdiction other than North Carolina shall be valid as a health care power of attorney in this State if it appears to have been executed in accordance with the applicable requirements of that jurisdiction or of this State.

History

(2007-502, s. 7.)

§ 32A-28. Purpose.

1. The General Assembly recognizes as a matter of public policy the fundamental right of a parent to delegate decisions relating to health care for the parent's minor child where the parent is unavailable for a period of time by reason of travel or otherwise.
2. The purpose of this Article is to establish a nonexclusive method for a parent to authorize in the parent's absence consent to health care for the parent's minor child. This Article is not intended to be in derogation of the common law or of Article 1A of Chapter 90 of the General Statutes.

History

(1993, c. 150, s. 1.)

§ 32A-29. Definitions.

As used in this Article, unless the context clearly requires otherwise, the term:

1. "Agent" means the person authorized pursuant to this Article to consent to and authorize health care for a minor child.
2. "Authorization to consent to health care for minor" means a written instrument, signed by the custodial parent and acknowledged before a notary public, pursuant to which the custodial parent authorizes an agent to authorize and consent to health care for the minor child of the custodial parent, and which substantially meets the requirements of this Article.
3. "Custodial parent" means a parent having sole or joint legal custody of that parent's minor child.
4. "Health care" means any care, treatment, service or procedure to maintain, diagnose, treat, or provide for a minor child's physical or mental or personal care and comfort, including life sustaining procedures and dental care.
5. "Life sustaining procedures" are those forms of care or treatment which only serve to artificially prolong life and may include mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and other forms of treatment which sustain, restore, or supplant vital bodily functions, but do not include care necessary to provide comfort or to alleviate pain.
6. "Minor or minor child" means an individual who has not attained the age of 18 years and who has not been emancipated.

History

(1993, c. 150, s. 1.)

§ 32A-30. Who may make an authorization to consent to health care for minor.

Any custodial parent having understanding and capacity to make and communicate health care decisions who is 18 years of age or older or who is emancipated may make an authorization to consent to health care for the parent's minor child.

History

(1993, c. 150, s. 1.)

§ 32A-31. Extent and limitations of authority.

1. A custodial parent of a minor child, pursuant to an authorization to consent to health care for minor, may grant an agent full power and authority to consent to and authorize health care for the minor child to the same extent that a custodial parent could give such consent and authorization.
2. An authorization to consent to health care for minor may contain, and the authority of the agent designated shall be subject to, any specific limitations or restrictions as the custodial parent deems appropriate.
3. A custodial parent may not, pursuant to an authorization to consent to health care for minor, authorize an agent to consent to the withholding or withdrawal of life sustaining procedures.

History

(1993, c. 150, s. 1.)

§ 32A-32. Duration of authorization; revocation.

1. An authorization to consent to health care for minor shall be automatically revoked as follows:
   1. If the authorization to consent to health care for minor specifies a date after which it shall not be effective, then the authorization shall be automatically revoked upon such date.
   2. An authorization to consent to health care for minor shall be revoked upon the minor child's attainment of the age of 18 years or upon the minor child's emancipation.
   3. An authorization to consent to health care for minor executed by a custodial parent shall be revoked upon the termination of such custodial parent's rights to custody of the minor child.
2. An authorization to consent to health care for minor may be revoked at any time by the custodial parent making such authorization. The custodial parent may exercise such right of revocation by executing and acknowledging an instrument of revocation, by executing and acknowledging a subsequent authorization to consent to health care for the minor, or in any other manner in which the custodial parent is able to communicate the parent's intent to revoke. Such revocation shall become effective only upon communication by the custodial parent to the agent named in the revoked authorization.
3. In the event of a disagreement regarding the health care for a minor child between two or more agents authorized pursuant to this Article to consent to and authorize health care for a minor, or between any such agent and a parent of the minor, whether or not the parent is a custodial parent, then any authorization to consent to health care for minor designating any person as an agent shall be revoked during the period of such disagreement, and the provisions of health care for the minor during such period shall be governed by the common law, the provisions of Article 1A of Chapter 90, and other provisions of law, as if no authorization to consent to health care for minor had been executed.
4. An authorization to consent to health care for minor shall not be affected by the subsequent incapacity or mental incompetence of the custodial parent making such authorization.

History

(1993, c. 150, s. 1.)

§ 32A-33. Reliance on authorization to consent to health care for minor.

1. Any physician, dentist, or other health care provider involved in the health care of a minor child may rely upon the authority of the agent named in a signed and acknowledged authorization to consent to health care for minor in the absence of actual knowledge that the authorization has been revoked or is otherwise invalid.
2. Any consent to health care for a minor child given by an agent pursuant to an authorization to consent to health care for minor shall have the same effect as if the custodial parent making the authorization were present and acting on behalf of the parent's minor child. Any physician, dentist, or other health care provider relying in good faith on the authority of an agent shall be protected to the full extent of the power conferred upon the agent, and no person so relying on the authority of the agent shall be liable, by reason of reliance, for actions taken pursuant to a consent of the agent.

History

(1993, c. 150, s. 1.)

§ 32A-34. Statutory form authorization to consent to health care for minor.

The use of the following form in the creation of any authorization to consent to health care for minor is lawful and, when used, it shall meet the requirements and be construed in accordance with the provisions of this Article.

"Authorization to Consent to

Health Care for Minor."

I, ________, of ________ County, ________, am the custodial parent having legal custody of ________, a minor child, age ______, born ____________, ________. I authorize ________, an adult in whose care the minor child has been entrusted, and who resides at ____________, to do any acts which may be necessary or proper to provide for the health care of the minor child, including, but not limited to, the power (i) to provide for such health care at any hospital or other institution, or the employing of any physician, dentist, nurse, or other person whose services may be needed for such health care, and (ii) to consent to and authorize any health care, including administration of anesthesia, X-ray examination, performance of operations, and other procedures by physicians, dentists, and other medical personnel except the withholding or withdrawal of life sustaining procedures. [Optional: This consent shall be effective from the date of execution to and including ____________, ________.]. By signing here, I indicate that I have the understanding and capacity to communicate health care decisions and that I am fully informed as to the contents of this document and understand the full import of this grant of powers to the agent named herein. ____________ (SEAL) ______________ Custodial Parent Date STATE OF NORTH CAROLINA COUNTY OF ____________ On this ______ day of ____________, ________, personally appeared before me the named ________, to me known and known to me to be the person described in and who executed the foregoing instrument and he (or she) acknowledges that he (or she) executed the same and being duly sworn by me, made oath that the statements in the foregoing instrument are true. ______________ Notary Public My Commission Expires:____________ (OFFICIAL SEAL).

History

(1993, c. 150, s. 1; 1999, c. 456, s. 59)

§§ 32A-35 through 32A-39: Reserved for future codification purposes.

§§ 32A-40 through 32A-43: Repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018.

History

(G.S. 32A-40: 2005-178, s. 1, repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018. G.S. 32A-41: 2005-178, s. 1, repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018. G.S. 32A-42: 2005-178, s. 1; 2006-264, s. 39(a), repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018. G.S. 32A-43: repealed by Session Laws 2017-153, s. 2.8, effective January 1, 2018.)

Cross References. - For similar current provisions, see the North Carolina Uniform Power of Attorney Act, G.S. 32C-1-101 et seq.

Editor's Note. - The former numbers G.S. 32A-40 through 32A-43 were assigned by the Revisor of Statutes, the numbers in Session Laws 2005-178, s. 1, having been G.S. 32A-35 through 32A-38.

Former G.S. 32A-40 pertained to the reliance on power of attorney. Former G.S. 32A-41 pertained to the penalty for unreasonable refusal to recognize power. Former G.S. 32A-42 pertained to the protection for third parties. Former G.S. 32A-43 pertained to the scope of Article.