Professional Says with Kelly Rains Jesson 4

Planning for Possible Incapacity with Estate Planning Documents

As an estate planning attorney, I prepare the standard end-of-life documents that many people are familiar with, like wills and trusts, which primarily focus on distributing property.  But did you know that another large part of my job is helping my clients plan for healthcare situations?  

Also called a healthcare proxy, a healthcare power of attorney allows the principal to appoint an agent to act on his/her behalf and make medical decisions in the event that they become incapacitated. It is not necessarily an end-of-life document; a person could be temporarily incapacitated (like under anesthesia) and need an agent to speak on their behalf.  

An advance directive for a natural death is also known as a “living will.” In that document, the principal would direct to the medical providers that they do not want to be kept on life support. An advanced directive only applies when a doctor has made a determination that the individual is not going to recover from his/her injury or illness.  

In the absence of a health care power of attorney document or an advance directive, North Carolina law sets forth an order of priority as to people who can consent to medical treatment on your behalf in the event that you become incapacitated (including withholding or withdrawing life support):

(1) A legal guardian; 

(2) A healthcare agent appointed pursuant to a valid healthcare power of attorney;

(3) An attorney-in-fact, with powers to make healthcare decisions for the patient, appointed pursuant to a valid general power of attorney; 

(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;

(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; or

(8)  The patient’s attending physician, if there is confirmation by a second physician of the patient’s condition and the necessity for treatment (except in an emergency, the second physician’s confirmation is not required). 

    You can see why it would be in some people’s best interest to have these documents drafted rather than to rely on the default statute. If you and your spouse are informally or 1legally separated, the spouse may still be able to make medical decisions on your behalf prior to your divorce. Without an agent or spouse, the default law calls for a majority of reasonably available parents or children. What if these parties disagree and there is a deadlock? If you draft a healthcare directive, you can direct the hospital to make decisions based on your wishes, not those of your loved one. Also, it relieves your family members from having to make that decision in the first place, which can be a gift from you. If you have an accident or become ill in another state, that state’s laws will apply to who makes medical decisions on your behalf if you do not have a power of attorney, and it might not be the individual you would prefer. 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 and can save a lot of headache and heartache in the future.

Readers should not only get their documents in place, but talk to their college-aged kids, aging parents, or other elderly loved ones and encourage them to visit with an attorney before incapacity becomes an issue. If the individual lacks the capacity to enter into a contract or make legal decisions, or does not understand the effect of the document, it is too late for them to execute these legal documents.  

Jesson & Rains is an estate planning, business, and construction law firm located in SouthPark. If you are interested in having a will drafted, or any other estate planning documents like a power of attorney or healthcare proxy, please contact Jesson & Rains. | 704-496-2770 |