​Who makes medical decisions on my behalf if I become incapacitated?

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.