A couple of years 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 (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;
(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.
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.
 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)..
 Power of attorney over health care decisions (as you appoint).
 N.C.G. S. § 90-21.13.
If you or someone you know would like more information about medical incapacity, please give Jesson & Rains a call.
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