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Blog

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

12/11/2015

43 Comments

 
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.

43 Comments
Helen copus
12/29/2018 05:39:29 am

My dad had a major stroke and is paralyzed. Due to problems with family members my mom wants to get power of attorney. However it could be challenged that he is competent or not, communication is very limited . After doing some research it seems the only way for my mom to achieve this, points to. guardianship through the courts... we cant afford to go that route, we dont know what.to fo? Help

Reply
Kelly Jesson
12/30/2018 08:25:07 am

Helen, I am so sorry that you and your family are going through this. If your father is incapacitated, he may not be able to execute a legal document. Feel free to contact us if you would like to discuss further! 704-496-2770

Reply
David Hauer
7/29/2020 08:11:03 pm

My son in Denver,Co had a fall brain problem and in coma induced by Dr.
Wife with him.
It there insurance needs power of to keep his insurance going after credited days like unused VA expires to kick in contining his medical coverage and short and long term ins. He can’t sign one there told as to get Emergency one from court. Attorney wants 5,000 up front money and 400 hr to get it done in short time. Seems to high to me. Need ad bise

Pamela Davila
1/12/2021 03:28:37 am

My brother was living in a group home in Burlington nc he has a guardian but I am his sister and next of kin the guardian and I disagree on DNR BUT SHE applied it anyways?? What is the law in North Carolina?? Can the guardian override next of kin?? He had a stroke but they seem to be giving up hope for recovery?? My brother RESPONDS everytime I call him?? So I think he has a chance?? Please help me before it's too late!!!

Michelle hutchins
4/13/2019 01:00:52 pm

My brother was in a wreck a month ago and is still in the hospital legalized somehow his girlfriend signed herself and her 13 and 14 year old kids as his POA without speaking to family he can talk but I don't think that she should bemaking those types of decision on his behalf and more so not her minor children please contact me as of what to do

Reply
Michelle hutchins
4/13/2019 01:14:36 pm

My brother was in an car accident a month ago his girlfriend has signed POA papers naming her and her 13 & 14 year old as decision maker's on his behalf he is legalized and cannot use his hands but is able to speak they have been together for a short time less than a yearanf I don't feel like she and her minor kids shouldbe making decisions like this for him and she gets high on drugs Daily

Reply
Lala B
10/22/2020 07:59:27 pm

Can you please help me as I’m in the same situation? His kids aren’t even allowed to see him due to a code his EX girlfriend placed on him in the hospital. We found out she was his emergency contact in 2018 so the hospital allowed her to make the decisions for him.

Reply
Kelly Jesson
10/23/2020 08:01:36 am

Lala, I'm so sorry. If he is in NC, please give us a call at your convenience to discuss.

Kelly Jesson
4/13/2019 05:34:00 pm

Michelle, I am so sorry! Please contact us directly at 704-496-2770 or [email protected].

Reply
Ms colby,/sutton
4/13/2019 06:40:01 pm

Can you help. I been together with my other half 10 years. He attempted suicide left him n life support 10 days not knowing if he recover. His sister next of kin and his mum. They cut me off totally along with his brother. Hospital refuse to give me any info at all about my husband I married abroad. Not got docs. Even as partner in uk do I have any legal rights to know if he alive or dead as his wife abroad and partner in uk we been together many years. I gravely ill now not knowing. His mum and sister falsely accusing me of him taking his life when he did this at his parents home. I not seen him for 4 days, as he staying at his parents, had 2 disturbing messages saying he stabbed himself. He not pick up his phone begging him not hurt himself and get help. I in terrible way. You help. I at relatives not able to go home too may memories and pain.

Reply
Kelly Jesson
4/14/2019 08:09:44 am

Ms. Colby/Sutton, I am so sorry! Please contact us directly at 704-496-2770 or [email protected]

Reply
Emily Boyd
4/17/2019 10:08:30 pm

I'm going through an issue with my mother's medical information and personal properties with my stepfather when she passed away under unusual and sudden circumstances has left us with many many questions that need to be answered I need to gain power of attorney or medical power of attorney over my stepfather if possible I am her middle daughter I also have her youngest daughter my little sister that would like to go in on this with me I need to know what to do to prove him unfit as her power of attorney knowing that she was forced to even get the life insurance just recently before she passed away by her husband I fear that due to his money problems very bad things happened to get that taken care of and I desperately need help getting whatever I need to get to prove this to get the power and to be able to get my hands on her medical information or whatever else I need to do or gather up 2 make this right for the family on my mother's behalf since she is no longer with us can you help me

Reply
Kelly Jesson
4/18/2019 08:42:36 am

Emily, I am so sorry to read this! Please contact us directly at 704-496-2770 or [email protected]

Reply
Denise Kirk
5/29/2019 05:50:07 pm

My husband is in ICU and his parents are his emergency contact so they had me band from his room and any medical information. How can I over turn this decision?

Reply
Kyle Dixon
1/22/2020 06:27:29 pm

My wife of 15 years passed away in the hospital . I wasn't notified of her passing until several days after her passing. Her sister was place as a emergency contact , unaware of her passing she had been taken from one state to another. And was cermated with out my consent. This davastayed me mentally ,can you give me advised about this situation.

Reply
Kelly Jesson
1/22/2020 08:18:05 pm

I'm so sorry to hear about your wife! Please contact our office at [email protected] or 704-496-2770.

Randy Chorvack link
8/20/2019 02:21:44 pm

It's interesting that a health care agent can be appointed to you if you're incapacitated. My little sister was just in a bad car wreck and she's been in critical condition for about a day now. Maybe I should see about getting her a healthcare attorney.

Reply
Kelly Jesson
8/21/2019 12:22:58 pm

Randy, I am so sorry that you and your family are going through this. If your sister is already incapacitated, she may not be able to execute a legal document. Feel free to contact us if you would like to discuss further! 704-496-2770

Reply
Tammy Lafon
11/18/2019 01:12:08 am

I took my spouse to the ER in Roanoke ,VA. This past July he has Neurocognitive Disorder and his Behaviors we’re out of control. I felt this was due to the many changes in medications the past week. While there they issuesd an TDO for him. I wasn’t allowed to see him anymore and they shipped him off to a facility about 2 hours from me. I didn’t find out until almost 3 weeks later where he was. While there he was involuntarily committed. He is now in Catawba Hospital in our town. I just got copies from him of the hearing. On the documents they checked that there was no known guardian or legally authorized representative for him. They also checked that th respondents next of kin was sent a certified copy of the petition. I was never notified nor did I receive a certified copy of the petition! I just found this out because I called to tell them I wanted to bring him home after the hospital
Left me a message stating he was ready for discharge. They told me no! I went to visit him and found the documents! I want my husband home!!! What do I do?

Reply
Kelly Jesson
11/18/2019 10:23:34 am

Mrs. Lafon,

I'm so sorry to hear about your husband! Please contact our office at [email protected] or 704-496-2770.

Reply
Vera
2/12/2020 02:56:35 am

I have been married to my husband for less than 2 years. He had a massive stroke and is in a vegetative state. His family has a different way of dealing with people in coma than I. We are having lots of problems as regard medical bills and health care decisions. We have no children. Family requested power of attorney. I'm willing to give it to them. Just don't know what to do and how to do it. What do I do?

Reply
Kelly Jesson
2/13/2020 08:08:49 am

Vera, I'm so sorry to hear about your husband! Please contact our office at [email protected] or 704-496-2770

Reply
Rita
2/18/2020 06:32:30 am

My husband passed on Saturday and I was notified until I say it on Facebook we were not divorced but not living together. His oldest brother has took it upon himself and ordered an autopsy and planned the funeral. We was together for 20 years. What can I do at this point?

Reply
Kelly Jesson
2/19/2020 08:03:18 am

Rita, I'm so sorry to hear of your husband's passing. Please give us a call at 704-496-2770.

Reply
Irene Lozano
4/30/2020 11:59:29 pm

I am my husbands caretaker and representative. He is in the hospital in Ca in a very weak and dire state. I was told by a nurse I cannot take pictures of his hospital monotors. I need them to go over when I get home since I'm only being allowed to visit him 15 minutes a day 2 times a week. As his spouse, caretaker and representative shouldn't I be allowed to do this?

Reply
Kelly Jesson
5/1/2020 06:19:56 pm

Mrs. Lozano, I am so sorry! You should contact an attorney in California for assistance.

Reply
Patricia Perillo
7/12/2020 03:05:46 pm

My son was in the hospital in Colorado in June 2020 37 years old and I his mother and sisters lived out of state I got a phone call from one of his neighbors that he was in the hospital in bad condition he had congestion heart failure and blood infection and I called the hospital and they put my son in ICU and in the meantime we were booking our flights to get to the hospital in Colorado so I was told by the ICU nurse that a doctor would be calling me and we booked our flights so
My daughter got there and my flight was cancelled so I was taking the next plane out and I was trying to keep in touch with the nurses trying to find out when the doctor was going to call me will one of the nurses hung up on me and walked into my son's room where my daughter was and told my daughter your mother has called seven times we need her to stop calling we're not going to give her the information we're going to tell you and you're going to have to let her know what's going on with the medical information of your brother well my daughter inform them that they need to speak to me his mom because I knew everything of his medical record he was born with heart conditions at two weeks old in two years old he had to have open heart surgery and she was trying to talk to them and tell them to talk to me because I knew everything she had no clue what was going on and the nurses were very rude so they let my daughter stay there and this is today's now no phone call from the doctor or nurse or anyting waiting on my flight to go my son passes away at 4 a.m. on June 13th they did a procedure on him that I really believe that shouldn't have been done he was in so much distress that I don't believe that procedure was going to do them any good witch it didn't he started going downhill right after the procedure and passed away that same day so now I got his medical records and in the medical records my son stated not on just one page on a lot of pages that he wanted his mother to make all medical decisions for him and I wasn't even able to speak to a doctor or a nurse they hung up the phone on me and all kinds of things that I was put through

Reply
Kelly Jesson
7/12/2020 09:06:57 pm

Patricia, I'm so terribly sorry! Since this happened in Colorado, you must contact a Colorado attorney.

Reply
Christina
9/23/2020 05:16:31 pm

My foster daughter was unfolded in a motorcycle accident. She was talking before they flew her in and I asked to have her sign papers so I could call and find out what is going on. She said she was going to nurse said she had to wait in till she got to anchorage. That they couldn't do it here because it was a different hospital. Anmc hospital in anchorage ak said they appointed her uncle who is only her uncle by marriage her never had custody of her. He has been appointed to make all decisions. And they won't give me any info on her condishion she is 24

Reply
Keith
10/5/2020 07:01:33 pm

My mother had a anoxic brain injury she's been in the hospital for the past 4 months she did not have a medical power of attorney but I was her caregiver for many many years and she also live with me the hospital was supposed to find her a skilled Nursing Facility but they could not find her any right now, now the hospital is telling me that they are going to get a medical power of attorney and they're going to take her off life support I live in North Carolina can this be possible what they are trying to do

Reply
Kelly Jesson
10/23/2020 08:00:17 am

Keith, I'm so sorry. Please give us a call at your convenience to discuss.

Reply
Tina felton
12/19/2020 08:55:37 am

My mom has died of medical malpractice i am her health care surrogate can i sue on her behalf even tho she was married and he doesnt wanna sue i have been her cate taker for the last 5 yrs

Reply
Kelly Jesson
3/28/2021 12:17:14 pm

Tina, I am so sorry about your mother! In most states, including North Carolina, the executor an estate can sue on behalf of a decedent, and there are certain rules about who can serve as executor. Please give us a call if you are in North Carolina. 704-444-0594

Reply
Danelle
5/6/2021 07:41:04 am

My father was n is still soul n mind gave the hospital permission to give me any medical imfo on him. They had to put him on a vent and now my step mother has told them to stop giving me info on my father what are my rights for this.

Reply
Kelly Jesson
5/6/2021 03:09:57 pm

Danelle, I am sorry. Please call us if your father is in NC
(704) -444-0594; however, if he is in another state, please contact an attorney there.

Reply
Gwendolyn Benton
8/2/2021 02:55:39 pm

My fiance was admitted into the hospital after he had went missing for 3 days the hospital called me and I went up there and had his identification and insurance and VA card so that he was properly identified. When when they admitted him his blood sugar was very escalated he was dehydrated and had a fever and he was combative and couldn't understand what was occurring and I tried to tell them what his conditions were but they totally ignored me and kept him restrained and then had his son since we are not legally married had him transferred to another facility where he does not want to be. He is coherent and I. His right mind can he reassign me as his POA so I can get him home where he as all the amenities and his Drs are here and his VA liason are

Reply
Kelly Jesson
8/3/2021 05:26:30 pm

If you're in North Carolina give us a call at 704-444-0594.

Reply
Pinkham & Associates link
4/12/2022 04:43:01 pm

There is no case law on this issue. If you file a health care directive, the hospital must comply with your wishes. I’m so thankful for your helpful post!

Reply
Kelly Jesson
5/31/2022 03:16:54 pm

Thank you for commenting on our blog!

Reply
Moshtael Family Law Orange County link
4/15/2022 04:02:53 pm

If the hospital does not release the information, there is no way the family member can make decisions on the patient’s behalf, Thank you for making this such an awesome post!

Reply
Kelly Jesson
5/31/2022 03:18:20 pm

Thank you for commenting and reading our blogs!

Reply
Tex Hooper link
6/27/2022 08:13:59 pm

I like your medical tips. I need to get a check-up at the doctors. I think my stomach is having some issues.

Reply
Mia Evans link
12/17/2022 06:18:29 am

It really helped when you said that the spouse can still make decisions for our health whether they are separated or not once a person is incapacitated. I will mention this information to my friend who plans to go to a medical facility to see if she already needs to undergo surgery. She feels like she thinks that she has a tumor which has to be removed, and she worries if she might become unconscious for some time because she mentioned that it is located in her head.

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