HEALTH CARE POWER OF ATTORNEY
Over twenty years ago, South Carolina adopted a new law that allows competent individuals who are at least eighteen (18) years of age to appoint an agent under a durable power of attorney to specifically make medical and health care decisions on behalf of such individual. The enactment of the Health Care Power of Attorney has significantly improved our ability to insure that our own personal desires about specific types of health care are honored when we are unable to do so ourselves.
The law allows us to choose who we trust most to make health care decisions for us, whether it is a spouse, an adult child, a sibling, or a trusted friend. It provides that this person we have chosen will step into our shoes when we are unable to make health care decisions and make those decisions for us. At the same time, the Health Care Power of Attorney insures that as soon as we are able to resume making our own decisions, our right to do so will be honored and our physicians will turn to us to make our own decisions.
The Health Care Power of Attorney requires that the agent follow our desires as stated in the Health Care Power of Attorney or as otherwise expressed by us or known to our agent. If the agent does not know what we would want in a particular situation and is unable to determine what we want by attempting to communicate with us, then the agent must make a decision based upon what the agent believes is in our best interest.
One of the benefits that resulted from South Carolina’s enactment of the Health Care Power of Attorney was the adoption of a “statutory form” Health Care Power of Attorney. This statutory form is a “fill-in-the-blank” and “initial the box” form that South Carolinians can use as their Health Care Power of Attorney. The benefit of this statutory form legal document that has been in use in South Carolina since 1992 is that it is easily recognizable by all health care providers and, because of such, physicians and hospitals feel comfortable allowing an agent named in the statutory Health Care Power of Attorney to make decisions for the patient when the patient is not competent, either physically or mentally, to make his or her own decisions.
In addition to setting forth and granting specific powers to the agent named in a Health Care Power of Attorney, South Carolina’s statutory form also allows the person executing the Health Care Power of Attorney to make his or her own personal decisions and also provide specific instructions concerning organ and tissue donation, terminal illnesses, life-sustaining procedures, vegetative or permanent states of unconsciousness, artificial nutrition and hydration, alternate agents, and more. It also allows the person executing the Health Carew Power of Attorney to place restrictions or limitations upon their agent’s authority, and include detailed instructions or desires that may not otherwise be addressed in the statutory form Health Care Power of Attorney.
The Health Care Power of Attorney is just as an important and critical tool in planning for disability as a general Durable Power Attorney for property, financial affairs and personal affairs. It concerns an area of our life that is so very personal and private for each of us but which most of us have very strong feelings about one way or another; most of us have definite feelings about what we want and don’t want. We must be willing, however, to talk about these issues and let our wishes be known to those closest to us. We must also make our wishes known to those who are now or one day may be providers of our health care. We can do this very easily by executing a Health Care Power of Attorney, which is just one of several tools that are available to help insure that our wishes are known and carried out by others.
In an overwhelmingly majority of cases where a person is unable to make his or her own decisions related to their health care but prior to such time have planned for their disability by executing a Health Care Power of Attorney, such person's wishes can be known and honored. But when people who have failed to plan end up being unable to make their own decisions because of physical or mental disability and decisions must be made and there is no clear person with authority or those with authority disagreed as to what should be done, these families are often required to file a petition in our probate court for guardianship and temporary guardianships for the person who failed to plan. In those guardianship proceedings, the probate court is asked to appoint a family member or someone else to make personal and medical decisions for the incapacitated person. A majority of the guardianship cases that end up in our probate court could be eliminated if the person for whom a guardian as sought had executed a Health Care Power of Attorney along with the general Durable Power of Attorney for their property and their person. I encourage everyone to take the steps today to plan accordingly. Remember an ounce of prevention is worth a pound of cure!
(The information provided in this article is for informational purposes only and is of a general nature. The information should not be construed as legal advice. If you have any questions about the subject matter of this article or related matters, you should consult with a professional advisor for advice. Deirdre W. Edmonds is the former Horry County Probate Judge and is the owner of The Law Office of Deirdre W. Edmonds, PA, located at 1500 Highway 17 North, The Courtyard, Suite 213, Surfside Beach, SC 29575. The Law Office of Deirdre W. Edmonds, PA focuses on estate planning, probate administration, probate and trust litigation, disability planning and elder law. Contact Deirdre W. Edmonds via Telephone: (843) 232-0654; Website: www.dedmondslaw.com; and Email: dedmonds@dedmondslaw.com.)