A few weeks ago, viewers across North Carolina were shocked when they saw a story on the news about a mother, Rae Stone, and her son, Forrest.  Forrest had just turned 18 when he was involved in a snowboarding accident that left him in a coma.  The Virginia hospital treating Forrest would not allow his mother to make medical decisions on his behalf or access his medical information due to HIPAA.  According to the news story, the doctors at the hospital were the ones who were deemed to be the decision makers.
 
Clients in North Carolina want to know: Would this happen in North Carolina?
 
The answer is maybe. In North Carolina, the following people, in this order, are authorized to consent to medical treatment on behalf of an incapacitated patient:
 
(1) A health care agent appointed pursuant to a valid health care power of attorney[1] (unless the court has appointed a guardian and suspended the health care agent’s power);
 
(2) A court-appointed guardian;
 
(3) An attorney-in-fact, with powers to make health care decisions for the patient;[2]
 
(4) The patient's spouse;
 
(5) A majority of the patient's reasonably available parents and children who are at least 18 years of age;
 
(6) A majority of the patient's reasonably available siblings who are at least 18 years of age; or
 
(7) 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.
 
(8) The patient's attending physician.[3]
 
Therefore, if a power of attorney or guardianship does not exist, in the event your unmarried child is incapacitated, you should be able to consent to their medical treatment in North Carolina.  If you are married, you should be able to consent to your spouse’s treatment if they become incapacitated.
 
Given the North Carolina statute, is there any reason why I should fill out a health care directive or appoint my loved one as my power of attorney?  Yes.

1. If you and your spouse are informally or legally separated, the spouse may still be able to make medical decisions on your behalf prior to your divorce. There is no case law on this issue. If you file a health care directive, the hospital must comply with your wishes.  Or you can appoint someone else power of attorney. 
2. The statute calls for a MAJORITY of reasonably available parents or children.  What if these parties disagree?  What if your parents and your children disagree with your treatment?  What if there is an even split, so there is not a majority?  There is no case law on this issue, either.  A health care directive or power of attorney appoints one person as the decision maker.
3. What if you know, in advance, that the person tasked with making the decision on your behalf pursuant to the statute (your husband, for example) disagrees with your final wishes?  For example, your husband would keep you alive on a ventilator, even if you had no chance at survival and you did not want to be kept alive?  If you draft a health care directive, you can direct the hospital to make decisions based on YOUR wishes, not those of your loved one.
4. Under HIPAA, a federal law that applies to medical facilities and patients in North Carolina, a physician may release medical information to family members in an emergency. The hospital is not required to.  If the hospital does not release the information, there is no way the family member can make decisions on the patient’s behalf, as allowed under North Carolina law.  However, a doctor is required to release information to a “personal representative,” which includes people named in a health care directive, health care power of attorney, or durable power of attorney that includes the power to make healthcare decisions.
5. Simplicity.  If you or a loved one are in the hospital, do you really want to risk it?  Do you want to spend your time arguing with the hospital or hiring an attorney to help you?  Probably not.  Having these documents drafted costs very little and does not take much time.  It can save a lot of headache and heartache in the future.

[1] Power of attorney for the sole purpose of making medical decisions on your behalf, or a health care agent named in your advanced health care directive (which outlines your wishes in the event you become incapacitated)..

[2] Power of attorney over  health care decisions (as you appoint).

[3] N.C.G. S. § 90-21.13.

​Often times, when renting a property, Renters will discover that various things—whether they’re appliances, plumbing fixtures, light switches, or more insignificant features of the home—are not working properly. One of the benefits of renting, as opposed to buying, your home is that you are not going to be responsible for every little thing that goes wrong with the home. However, it is important to read your lease in detail as it will often tell you what you as the tenant are responsible for, and what the landlord is responsible for.
 
Under North Carolina law, there are certain things that the Landlord legally must be responsible for. For example, the Landlord must:
 
"Maintain in good and safe working order and promptly repair all electrical, plumbing, sanitary, heating, ventilating, air conditioning, and other facilities and appliances supplied or required to be supplied by him provided that notification of needed repairs is made to the landlord in writing by the tenant except in emergency situations."
 
This essentially means that the Landlord has to make sure that all of the electrical, plumbing, heating and air conditioning is working. This is what is known as a non-delegable duty. A non-delegable duty is one that the Landlord is responsible for no matter what, even if the Landlord adds a section to the lease saying otherwise.
 
So, what are you to do when something that the Landlord is responsible for breaks, but the Landlord, despite your complaints, refuses to fix it? One of the most common things people think they can do is pay to have the problem fixed themselves and then simply withhold that amount from their next rent payments. That is not allowed.
 
North Carolina law specifically states that “[t]he tenant may not unilaterally withhold rent prior to a judicial determination of a right to do so.” What this  means is that, unless you have a written agreement with your landlord or an order from the Court stating that you may withhold a certain dollar amount from your rent, you should not do so. Not paying the full rent, as described in your lease, is grounds for you to be evicted.
 
If you are having issues with your landlord, whether it be with them not repairing things that need to be repaired, or something else, it is very important that you document all of your communications with the landlord, in writing. While phone calls are generally easier, if you have a problem in the future, relying on a phone call will quickly turn into a “he said she said” argument.
 
It is also important that as a tenant you keep paying your rent. If you stop paying your rent, or start discounting your rent, your landlord may well decide to evict you. In order to stop paying rent, or to pay a discounted amount of rent, you need an agreement, in writing, from your landlord, or a court order.
 
If you are having difficulty obtaining the agreement or court order, the attorneys at Jesson & Rains, LLP may be able to help.