GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

S	1 

SENATE BILL 749

Short Title:  Health Care Power of Attorney.	(Public)
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Sponsors: Senator Daniel.
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Referred to:  Human Resources.
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April 23, 1991

A BILL TO BE ENTITLED
AN ACT TO ESTABLISH AN ADDITIONAL METHOD FOR AN INDIVIDUAL TO DESIGNATE AN ATTORNEY-IN-FACT TO MAKE HEALTH CARE DECISIONS.
The General Assembly of North Carolina enacts:
Section 1.  Chapter 32A of the General Statutes is amended by adding a new Article to read:
“ARTICLE 3.
"Health Care Powers of Attorney.
"§ 32A-15.  General Purpose of this Article.
(a)	The General Assembly recognizes as a matter of public policy the fundamental right of an individual to control the decisions relating to his or her medical care, and that such right may be exercised on behalf of the individual by an agent chosen by the individual.
(b)	The purpose of this Article is to establish an additional, nonexclusive method for an individual to exercise his or her right to give, withhold, or withdraw consent to medical treatment when the individual lacks sufficient understanding or capacity to make or communicate health care decisions.
"§ 32A-16.  Definitions.
(a)	A Health Care Power of Attorney is a written instrument, executed under seal, signed in the presence of two qualified witnesses, and acknowledged before a Notary Public, pursuant to which an attorney-in-fact or agent is appointed to act for the Principal in matters relating to the health care of the Principal, and which substantially meets the requirements of this Article.
(b)	For purposes of this Article, ‘health care' means any care, treatment, service, or procedure to maintain, diagnose, treat, or provide for the Principal's physical or mental health or personal care and comfort including, life-sustaining procedures.
(c)	For purposes of this article, life-sustaining procedures are those forms of care or treatment which only serve to artificially prolong the dying process and may include mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and other forms of treatment which restore or maintain vital bodily functions, but do not include care necessary to provide comfort or to alleviate pain.
(d)	Qualified witnesses to a Health Care Power of Attorney for the purposes of this Article, means witnesses in whose presence the Principal has executed the Health Care Power of Attorney, who believe the Principal to be of sound mind and who state that they (i) are not related within the third degree to the Principal or to the Principal's spouse, (ii) do not know or have a reasonable expectation that they would be entitled to any portion of the estate of the Principal upon his death under any Will of the Principal or codicil thereto then existing or under the Interstate Succession Act as it then provides, (iii) are not the attending physician of the Principal, or an employee of the attending physician, or an employee of a health facility in which the Principal is a patient, or an employee of a nursing home or any group-care home in which the Principal resides, and (iv) do not have a claim against any portion of the estate of the Principal at the time of the Principal's execution of the Health Care Power of Attorney.
"§ 32A-17.  Who may make a Health Care Power of Attorney.
Any person having understanding and capacity to make and communicate health care decisions, who is 18 years of age or over, may make a Health Care Power of Attorney.  The person making the Health Care Power of Attorney is referred to in this Article as the Principal.
"§ 32A-18.  Who may act as a Health Care Attorney-in-Fact.
Any competent person who is not engaged in providing health care to the Principal for remuneration, and who is 18 years of age or over, may act as a Health Care Attorney-in-Fact.  The person appointed as a Health Care Attorney-in-Fact is referred to in this Article as the Health Care Agent.
"§ 32A-19.  Extent of authority; limitations of authority.
(a)	A Principal, pursuant to a Health Care Power of Attorney, may grant to the Health Care Agent full power and authority to make health care decisions to the fullest extent that the Principal could make such decisions for himself or herself if he or she had understanding and capacity to make and communicate health care decisions, including without limitation, the power to authorize withholding or discontinuing life-sustaining procedures.  A Health Care Power of Attorney may also contain or incorporate by reference any lawful guidelines or directions relating to the health care of the Principal as the Principal deems appropriate.
(b)	A Health Care Power of Attorney may authorize the Health Care Agent to exercise any and all rights the Principal may have with respect to anatomical gifts, the authorization of any autopsy and the disposition of remains.
(c)	A Health Care Power of Attorney may contain, and the authority of the Health Care Agent shall be subject to, such specific limitations or restrictions as the Principal deems appropriate.
(d)	The Powers and authority granted to the Health Care Agent pursuant to a Health Care Power of Attorney shall be limited to the matters addressed therein, and, except as necessary to exercise such powers and authority relating to health care, shall not confer any power or authority with respect to the property or financial affairs of the Principal.
"§ 32A-20.  Effectiveness and duration; revocation.
(a)	A Health Care Power of Attorney shall become effective when and if the physician or physicians designated by the Principal determines in writing that the Principal lacks sufficient understanding or capacity to make or communicate decisions relating to the health care of the Principal, and shall continue in effect during the incapacity of the Principal.  Such determination shall be made by the attending physician if the physician or physicians designated by the Principal is unavailable or is otherwise unable or unwilling to make such determination.
(b)	A Health Care Power of Attorney shall be revoked by the death of the Principal and may be revoked by the Principal at any time, so long as the Principal is capable of making and communicating health care decisions.  The Principal may exercise such right of revocation by executing and acknowledging an instrument of revocation, by executing and acknowledging a subsequent Health Care Power of Attorney, or by any other manner by which the Principal is able to communicate his or her intent to revoke.  Such revocation shall become effective only upon communication to each Health Care Agent named in the revoked Health Care Power of Attorney and to the Principal's attending physician.
(c)	The authority of a Health Care Agent who is the spouse of the Principal shall be revoked upon the entry by a court of a decree of divorce or separation between the Principal and such Health Care Agent; provided that such divorce or separation shall not cause the revocation of the Health Care Power of Attorney if a successor Health Care Agent is designated.
"§ 32A-21.  Appointment, resignation, removal and substitution.
(a)	A Health Care Power of Attorney may contain provisions relating to the appointment, resignation, removal and substitution of the Health Care Agent.
(b)	If all Health Care Agents named in the instrument or substituted shall die or shall for any reason fail or refuse to act, and all methods of substitution have been exhausted, the Health Care Power of Attorney shall cease to be effective.
"§ 32A-22.  Relation of the Health Care Agent to a court appointed fiduciary and to a general attorney-in-fact.
(a)	If, following the execution of a Health Care Power of Attorney, a court of competent jurisdiction appoints a guardian of the person of the Principal, or a general guardian with powers over the person of the Principal, the Health Care Power of Attorney shall cease to be effective upon the appointment and qualification of such guardian.
(b)	A Principal may nominate, by a Health Care Power of Attorney, the guardian of the person of the Principal if a guardianship proceeding is thereafter commenced.  The court shall make its appointment in accordance with the Principal's most recent nomination in an unrevoked Health Care Power of Attorney, except for good cause shown.
(c)	The execution of a Health Care Power of Attorney shall not revoke, restrict or otherwise affect any nonhealth care powers granted by the Principal to an attorney-in-fact pursuant to a general power of attorney; provided that the powers granted to the Health Care Agent with respect to health care matters shall be superior to any similar powers granted by the Principal to an attorney-in-fact under a general Power of Attorney.
(d)	A Health Care Power of Attorney may be combined with or incorporated into a general Power of Attorney which is executed in accordance with the requirements of this Article.
"§ 32A-23.  Article 2, Chapter 32A, not applicable.
The provisions of Article 2 of this Chapter shall not be applicable to a Health Care Power of Attorney executed pursuant to this Article.
"§ 32A-24.  Reliance on Health Care Power of Attorney; Defense.
(a)	Any physician or other health care provider involved in the medical care of the Principal may rely upon the authority of the Health Care Agent contained in a signed and acknowledged Health Care Power of Attorney in the absence of actual knowledge of revocation of such Health Care Power of Attorney.
(b)	All health care decisions made by a Health Care Agent pursuant to a Health Care Power of Attorney during any period following a determination that the Principal lacks understanding or capacity to make or communicate health care decisions shall have the same effect as if the Principal was not incapacitated and was present and acting on his or her own behalf.  Any health care provider relying in good faith on the authority of a Health Care Agent shall be protected to the full extent of the power conferred upon the Health Care Agent, and no person so relying on the authority of the Health Care Agent shall be liable, by reason of such reliance, for actions taken pursuant to a decision of the Health Care Agent.
(c)	The withholding or withdrawal of life-sustaining procedures by or under the orders of a physician pursuant to the authorization of a Health Care Agent shall not be considered suicide or the cause of death for any civil or criminal purpose nor shall it be considered unprofessional conduct or a lack of professional competence.  Any person, institution or facility, including without limitation the Health Care Agent and the attending physician, against whom criminal or civil liability is asserted because of conduct described in this section may interpose this section as a defense.
"§ 32A-25.  Statutory Form Health Care Power of Attorney.
The use of the following form in the creation of a Health Care Power of Attorney is lawful and, when used, it shall meet the requirements of and be construed in accordance with the provisions of this Article:
‘(Notice:  This document gives the person you designate (your "Health Care Agent" ) broad powers to make health care decisions for you, including the power to consent to your doctor not giving treatment or stopping treatment necessary to keep you alive.  This power exists only as to those health care decisions to which you are unable to give informed consent.
This form does not impose a duty on your Health Care Agent to exercise granted powers, but when a power is exercised, your Health Care Agent will have to use due care to act in your best interests and in accordance with this document.  Because the powers granted by this document are broad and sweeping, you should discuss your wishes concerning life-sustaining procedures with your Health Care Agent.
Use of this form in the creation of a Health Care Power of Attorney is lawful and is authorized pursuant to Section 32A-25 of the North Carolina General Statutes.  However, use of this form is an optional and nonexclusive method for creating such a power of attorney and Section 32A-25 does not bar the use of any other or different form of power of attorney for health care which meets the statutory requirements.)
1.  Designation of Health Care Agent.
I,....................., being of sound mind, hereby appoint
Name:.........................................................
Home Address:.................................................
Home Telephone No.............Work Telephone No............
as my Health Care Attorney-in-Fact (herein referred to as my "Health Care Agent" ) to act for me and in my name (in any way I could act in person) to make health care decisions for me as authorized in this document.
If the person named as my Health Care Agent is not reasonably available or is unable or unwilling to act as my Agent, then I appoint the following persons (each to act alone and successively, in the order named), to serve in that capacity: (Optional)
A.	Name:............................................
	Home Address:....................................
	Home Telephone No............Work Telephone No..............
B.	Name:.............................................
	Home Address:.....................................
	Home Telephone No............Work Telephone No..............
Each successor Health Care Agent designated hereunder shall be vested with the same power and duties as if originally named as my Health Care Agent hereunder.
2.  Effectiveness of Appointment.
(Notice:  This Health Care Power of Attorney may be amended or revoked by you at any time by executing a revocation or a new Health Care Power of Attorney and notifying your Health Care Agent and your attending physician in writing of the amendment or revocation.)
Absent amendment or revocation, the authority granted in this document will become effective when and if the physician or physicians designated below determine that I lack sufficient understanding or capacity to make or communicate decisions relating to my health care and will continue in effect during such incapacity, until my death.  The foregoing determination shall be made by the following physician or physicians (You may include here a designation of your choice, including your attending physician, or any other physician.  You may also name two or more physicians, if desired, both of whom must make the foregoing determination before the authority granted to the Health Care Agent becomes effective.):
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...................................................................................................................................................
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3.  General Statement of Authority Granted.
Except as indicated in Section 4 below, I hereby grant to my Health Care Agent named above full power and authority to make health care decisions on my behalf, including, but not limited to, the following:
A.	To request, review and receive any information, verbal or written, regarding my physical or mental health, including, but not limited to, medical and hospital records, and to consent to the disclosure of this information;
B.	To employ or discharge my health care providers;
C.	To consent to and authorize my admission to and discharge from a hospital, nursing or convalescent home or other institution;
D.	To give consent for, to withdraw consent for, or to withhold consent for, X ray, anesthesia, medication, surgery and all other diagnostic and treatment procedures prescribed (ordered) by or under the authorization of a licensed physician, dentist or podiatrist.  This authorization specifically includes the power to consent to measures for relief of pain.
E.	To authorize the withholding or withdrawal of life-sustaining procedures or measures when and if my physician determines that I am terminally ill, permanently in a coma, suffer severe dementia, or am in a persistent vegetative state.  Life-sustaining procedures or measures are those forms of medical care which only serve to artificially prolong the dying process and may include mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and other forms of medical treatment which restore or maintain vital bodily functions.  Life-sustaining procedures do not include care necessary to provide comfort or alleviate pain.
I DESIRE THAT MY LIFE NOT BE PROLONGED BY LIFE-SUSTAINING PROCEDURES OR MEASURES IF I AM TERMINALLY ILL, PERMANENTLY IN A COMA, SUFFER SEVERE DEMENTIA OR AM IN A PERSISTENT VEGETATIVE STATE.
F.	To exercise any right I may have to  make a disposition of any part or all of my body for medical purposes, to donate my organs, to authorize an autopsy and to direct the disposition of my remains.
G.	To take any lawful actions that may be necessary to carry out these decisions, including the granting of releases of liability to medical providers.
4.  Special Provisions and Limitations.
(Notice:  The above grant of power is intended to be as broad as possible so that your Health Care Agent will have authority to make any decisions you could make to obtain or terminate any type of health care.  If you wish to limit the scope of your Agent's powers, you may do so in this section.)
In exercising the authority to make health care decisions on my behalf, the authority of my Health Care Agent is subject to the following special provisions and limitations (Here you may include any specific limitations you deem appropriate such as: your own definition of when life-sustaining treatment should be withheld or discontinued, or instructions to refuse any specific types of treatment that are inconsistent with your religious beliefs or unacceptable to you for any other reason.):
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5.  Guardianship Provision.
If it becomes necessary for a court to appoint a guardian of my person, I nominate my Health Care Agent acting under this document to be the guardian of my person, to serve without bond or security.
6.  Reliance of Third Parties on Health Care Agent.
A.	No person who relies in good faith upon the authority of or any representations by my Agent shall be liable to me, my estate, my heirs, successors, assigns, or personal representatives, for recognizing my Agent's authority.
B.	The powers conferred on my Health Care Agent by this document may be exercised by my Health Care Agent alone, and my Health Care Agent's signature or act under the authority granted in this document may be accepted by persons as fully authorized by me and with the same force and effect as if I were personally present, competent, and acting on my own behalf.  All acts performed in good faith by my Health Care Agent hereunder are done with my consent and shall have the same validity and effect as if I were present and exercised the powers myself, and shall inure to the benefit of and bind me, my estate, my heirs, successors, assigns, and personal representatives.  The authority of my agent hereunder shall be superior to and binding upon my family, relatives, friends, and others.
7.  Miscellaneous Provisions.
A.	I hereby revoke any prior Health Care Power of Attorney.
B.	My Health Care Agent shall be entitled to sign, execute, deliver, and acknowledge any contract or other document that may be necessary, desirable, convenient or proper in order to exercise and carry out any of the powers and authorities described in this document and to incur reasonable costs on my behalf incident to the exercise of such powers; provided, however, that except as shall be necessary in order to exercise the powers described in this document relating to my health care, my Health Care Agent shall not have any authority over my property  or financial affairs.
C.	My Health Care Agent and my Health Care Agent's estate, heirs, successors, and assigns are hereby released and forever discharged by me, my estate, my heirs, successors, and assigns and personal representatives from all liability and from all claims or demands of all kinds arising out of the acts or omissions of my Health Care Agent pursuant to this document, except for willful misconduct or gross negligence.
D. No act or omission of my Health Care Agent, or of any other person, institution, or facility acting in good faith in reliance on the authority of my Health Care Agent pursuant to this Health Care Power of Attorney shall be considered suicide or the cause of my death for any civil or criminal purposes nor shall it be considered unprofessional conduct or as lack of professional competence.  Any person, institution, or facility against whom criminal or civil liability is asserted because of conduct authorized by this durable power of attorney for health care may interpose this document as a defense.
8.  Signature of Principal.
By signing here, I indicate that I am mentally alert and competent, fully informed as to the contents of this document, and understand the full import of this grant of powers to my Health Care Agent.

..............................................................(SEAL)..............................................
   Signature of Principal                                 Date

9.  Signature of Witnesses.
I hereby state that the Principal,.................., being of sound mind, signed the foregoing Health Care Power of Attorney in my presence and that I am not related to the Principal by blood or marriage and I would not be entitled to any portion of the estate of the Principal under any existing Will or codicil of the Principal or as an heir under the Intestate Succession Act if the Principal died on this date without a Will.  I also state that I am not the Principal's attending physician or an employee of the Principal's attending physician, or an employee of the health facility in which the Principal is a patient or employee of a nursing home or any group care home where the Principal resides. I further state that I do not have any claim against the Principal.

Witness:...................................Date:..................

Witness:...................................Date:..................

STATE OF NORTH CAROLINA

COUNTY OF...................................

CERTIFICATE

I,.................., a Notary Public for...............County, North Carolina, hereby certify that.................appeared before me and swore to me and to the witnesses in my presence that this instrument is a Health Care Power of Attorney, and that he/she willingly and voluntarily made and executed it as his/her free act and deed for the purposes expressed in it.
I further certify that...............and............., witnesses, appeared before me and swore that they witnessed..............sign the attached Health Care Power of Attorney, believing him/her to be of sound mind; and also swore that at the time they witnessed the signing (i) they were not related within the third degree to him/her or his/her spouse, and (ii) they did not know or have a reasonable expectation that they would be entitled to any portion of his/her estate upon his/her death under any Will or codicil thereto then existing or under the Intestate Succession Act as it provided at that time, and (iii) they were not a physician attending him/her or an employee of an attending physician or an employee of a health facility in which he/she was a patient or an employee of a nursing home or any group-care home in which he/she resided, and (iv) they did not have a claim against him/her.  I further certify that I am satisfied as to the genuineness and due execution of the instrument.
This the..................day of......................, 199.....

	..................................................
Notary Public

My Commission Expires:
........................................

(A copy of this form should be given to your Health Care Agent and any alternate named herein, and to your physician and family members.)
I,..............., agree to act as Health Care Agent for .................., pursuant to the foregoing Power of Attorney for Health Care.
This the.................day of........................., 19......

.......................................'."
Sec. 2.  This act is effective upon ratification; provided that this act is not intended and shall not be construed to invalidate Powers of Attorney executed prior to the effective date of the act which authorize an agent to make health care decisions for the principal.