North Carolina Healthcare Power of Attorney Requirements

Introduction

Key Things to Know

1. 1

   North Carolina lets you name someone other than a physician to certify that you've lost capacity, if you state in the document that you're declining to name a physician for religious or moral reasons, an option most states don't offer. Otherwise, a Health Care Power of Attorney here lets you (the principal) name a trusted adult (the agent) to make health care decisions for you if you become unable to make or communicate them yourself.

2. 2

   Your agent's authority does not start the moment you sign. It begins only after the physician or physicians you name, or your attending physician if you name none, determines in writing that you lack sufficient understanding or capacity to make or communicate your own health care decisions (N.C. Gen. Stat. Section 32A-20(a)).

3. 3

   North Carolina requires both a two witness signing and notarization on the same document. Unlike some states, notarization alone is never a substitute for witnessing (Section 32A-16(3)).

4. 4

   Both of your two witnesses, not just one, must independently clear the state's full disqualification list. Neither may be related to you within the third degree or to your spouse, entitled to any part of your estate, your attending physician or mental health treatment provider, a paid employee of that physician or provider, a paid employee of a health facility where you are a patient, a paid employee of a nursing home or adult care home where you reside, or a person with a claim against your estate (Section 32A-16(6)).

5. 5

   Your agent cannot be a person who is providing you health care for pay. North Carolina's agent rule, unlike some other states, has no exception for a paid provider who is also your relative (Section 32A-18).

6. 6

   You can revoke the document any time you are capable of making and communicating health care decisions, but the revocation only takes effect once you tell your agent and your attending physician (Section 32A-20(b)).

7. 7

   If you name your spouse as agent and later divorce or legally separate, their authority ends automatically. If you named a successor agent, that person then takes over.

8. 8

   North Carolina runs an optional Advance Health Care Directive Registry through the Secretary of State for a ten dollar filing fee. Filing is not required, and skipping it does not affect the document's validity.

9. 9

   This is a different document from North Carolina's Uniform Power of Attorney Act, Chapter 32C, which covers property and financial decisions and by law cannot authorize health care decisions.

North Carolina Requirements for Healthcare Power of Attorney

• Statutory Authority (N.C. Gen. Stat. Section 32A-15 through Section 32A-27)

  The Health Care Power of Attorney must comply with North Carolina's statutory requirements as set out in Article 3 of Chapter 32A of the North Carolina General Statutes, which is the state's legal framework for health care powers of attorney (Sections 32A-15 through 32A-27).

• Capacity of Principal (N.C. Gen. Stat. Section 32A-17)

  The principal must be at least 18 years of age and have understanding and capacity to make and communicate health care decisions at the time of execution (N.C. Gen. Stat. Section 32A-17).

• Witness Requirements (N.C. Gen. Stat. Section 32A-16(6))

  The Health Care Power of Attorney must be signed in the presence of two witnesses, and unlike some states that only require one of the two to be fully qualified, North Carolina requires both witnesses to independently meet the full disqualification list: neither may be related to the principal within the third degree or to the principal's spouse, entitled to any part of the principal's estate, the attending physician or mental health treatment provider, a paid employee of that physician or provider, a paid employee of a health facility where the principal is a patient, a paid employee of a nursing home or adult care home where the principal resides, or a person with a claim against the principal's estate (N.C. Gen. Stat. Section 32A-16(6)).

• Notarization Requirement (N.C. Gen. Stat. Section 32A-16(3))

  In addition to the two qualified witnesses, the Health Care Power of Attorney must have the principal's signature acknowledged before a notary public. North Carolina requires both witnessing and notarization together on the same document, it is not an either/or choice the way it is in some other states. The statute expressly permits the notary to be a paid employee of the principal's attending physician, mental health treatment provider, health facility, or nursing home or adult care home, an exception that applies only to the notary, not to the witnesses.

• Agent Qualifications (N.C. Gen. Stat. Section 32A-18)

  The Health Care Power of Attorney must name a competent adult, 18 years of age or older, who is not engaged in providing health care to the principal for remuneration, as the health care agent (N.C. Gen. Stat. Section 32A-18).

• Successor Agent Designation (N.C. Gen. Stat. Section 32A-21)

  The Health Care Power of Attorney may include provisions for the appointment, resignation, removal, and substitution of the health care agent, including naming one or more successor agents who serve if the primary agent is unwilling, unable, or unavailable (N.C. Gen. Stat. Section 32A-21).

• Agent Authority Scope (N.C. Gen. Stat. Section 32A-19)

  The Health Care Power of Attorney must define the scope of authority granted to the agent. By default the agent may make any health care decision the principal could make for themselves, including consenting to, withholding, or withdrawing treatment and authorizing or declining life prolonging measures, unless the principal states specific limitations in the document (N.C. Gen. Stat. Section 32A-19(a), (c)).

• HIPAA Authorization (45 CFR Section 164.508)

  Federal HIPAA regulations govern how the agent can be authorized to access the principal's protected health information once the document is in effect.

• Mental Health Treatment Decisions (N.C. Gen. Stat. Section 32A-19(a), (a1))

  Mental health treatment authority, including consenting to admission to a mental health facility and to electroconvulsive treatment, is already part of the agent's general grant of authority by default under North Carolina's statutory form, (N.C. Gen. Stat. Section 32A-19(a); statutory form Section 4(D) and (E) at Section 32A-25.1). Section 32A-19(a1) governs how a health care power of attorney may incorporate or coordinate with a separate advance instruction for mental health treatment under Chapter 122C, and requires the agent's mental health decisions to be consistent with any such instruction. A principal who wants to limit or exclude the agent's mental health treatment authority must affirmatively initial a restriction under Section 5(C) of the statutory form.

• Revocation Provisions (N.C. Gen. Stat. Section 32A-20(b))

  The principal may revoke the Health Care Power of Attorney at any time so long as the principal is capable of making and communicating health care decisions, by executing and acknowledging a written revocation, by executing and acknowledging a subsequent Health Care Power of Attorney, or by any other manner communicating clear intent to revoke. The revocation becomes effective only once the principal communicates it to the named health care agent and to the principal's attending physician (N.C. Gen. Stat. Section 32A-20(b)).

• Effective Date and Mandatory Incapacity Trigger (N.C. Gen. Stat. Section 32A-20(a))

  The agent's authority to make health care decisions becomes effective only when the physician or physicians named by the principal, or the attending physician if none is named, determines in writing that the principal lacks sufficient understanding or capacity to make or communicate health care decisions, and it continues only during that incapacity (N.C. Gen. Stat. Section 32A-20(a)).

• Anatomical Gift Authorization (N.C. Gen. Stat. Section 32A-19(b))

  The Health Care Power of Attorney may authorize the agent to exercise the principal's rights regarding anatomical gifts, autopsy authorization, and disposition of remains, limited to incurring reasonable costs related to exercising those powers (N.C. Gen. Stat. Section 32A-19(b)).

• Patient Self-Determination Act Compliance (42 U.S.C. Section 1395cc(f))

  Facilities that participate in Medicare and Medicaid must inform patients of their rights under state law to make advance directives, including a Health Care Power of Attorney.

• Guardian Nomination (N.C. Gen. Stat. Section 32A-22(b))

  The Health Care Power of Attorney may nominate the guardian of the principal's person for a court's consideration if guardianship proceedings are later commenced, and a court must appoint in accordance with the principal's most recent nomination absent good cause shown (N.C. Gen. Stat. Section 32A-22(b); statutory form Section 7).

• Living Will Coordination (N.C. Gen. Stat. Section 32A-15(c), Section 32A-26)

  A Health Care Power of Attorney may be combined with or incorporated into a Declaration of a Desire for a Natural Death, North Carolina's living will, and the statute sets out how the two interact when both exist, generally giving effect to the health care agent's specific authority over life prolonging measures unless the declaration expressly controls (N.C. Gen. Stat. Section 32A-15(c), Section 32A-26).

• Out-of-State Recognition (N.C. Gen. Stat. Section 32A-27)

  A health care power of attorney or similar document validly executed in another jurisdiction is valid as a Health Care Power of Attorney in North Carolina if it appears to have been executed in accordance with the requirements of that jurisdiction or of North Carolina (N.C. Gen. Stat. Section 32A-27).

• Liability Protection (N.C. Gen. Stat. Section 32A-24)

  A physician or other health care provider who relies in good faith on the authority of a health care agent under a signed and acknowledged Health Care Power of Attorney is protected from liability, including reliance on a copy obtained from the Advance Health Care Directive Registry, absent actual knowledge of revocation (N.C. Gen. Stat. Section 32A-24).

• Statutory Form Compliance (N.C. Gen. Stat. Section 32A-25.1)

  North Carolina provides an optional statutory form that, when used, satisfies the Article's requirements, but principals are not required to use this exact form as long as any form used substantially complies with Article 3 (N.C. Gen. Stat. Section 32A-25.1).