North Carolina Health Care Power of Attorney

(Durable Health Care Power of Attorney and HIPAA Release)

[// GUIDANCE: This comprehensive template is drafted to conform to Article 3 of Chapter 32A of the North Carolina General Statutes (N.C. Gen. Stat. §§ 32A-15 – 32A-25). Counsel should customize all bracketed fields, ensure witness eligibility, and confirm execution formalities prior to signing.]

TABLE OF CONTENTS

I. Document Header
II. Definitions
III. Operative Provisions
    A. Appointment of Health Care Agent
    B. Grant of Authority
    C. End-of-Life Instructions
    D. HIPAA Authorization
    E. Organ, Tissue, and Anatomical Gifts
    F. Nomination of Guardian
IV. Representations & Warranties
V. Covenants & Restrictions
VI. Default & Remedies
VII. Risk Allocation
VIII. Dispute Resolution
IX. General Provisions
X. Execution Block (Signatures, Witness Attestation, Notarization)

I. DOCUMENT HEADER

This Health Care Power of Attorney (the “Instrument”) is executed as of [EFFECTIVE_DATE] (the “Effective Date”) by [PRINCIPAL_NAME], residing at [PRINCIPAL_ADDRESS] (the “Principal”), pursuant to and in accordance with the North Carolina Health Care Power of Attorney Act, N.C. Gen. Stat. §§ 32A-15 – 32A-25 (the “Act”).

Recitals
A. The Principal desires to appoint a trusted person to make health-care decisions on the Principal’s behalf should the Principal lack capacity or otherwise be unable to make or communicate such decisions.
B. The Principal intends that this Instrument be durable and remain effective notwithstanding the Principal’s subsequent incapacity.

II. DEFINITIONS

For purposes of this Instrument, the following terms have the meanings given below:

1. “Act” – The North Carolina Health Care Power of Attorney Act, N.C. Gen. Stat. §§ 32A-15 – 32A-25.
2. “Advance Directive” – A written statement of the Principal’s wishes regarding health care and end-of-life decisions, including this Instrument and any Living Will executed pursuant to N.C. Gen. Stat. § 90-321.
3. “Agent” – The individual appointed in Section III.A to act for the Principal.
4. “Alternate Agent” – An individual designated to serve if the Agent is unable, unwilling, or disqualified to serve.
5. “Good Faith” – Honesty in fact and the observance of reasonable standards of health-care decision-making under the circumstances.
6. “Health Care Decision” – Any consent, refusal, withdrawal, or choice regarding diagnosis, treatment, or care of the Principal, including mental-health treatment, placement in or discharge from a health-care facility, and direction regarding life-prolonging measures.
7. “HIPAA” – The Health Insurance Portability and Accountability Act of 1996 and its implementing regulations, 45 C.F.R. Parts 160 & 164.
8. “Incapacity” – The inability, as determined under Section III.A.3, to understand or communicate an informed decision about one’s health care.

[// GUIDANCE: Add additional defined terms as needed for customized provisions.]

III. OPERATIVE PROVISIONS

A. Appointment of Health Care Agent

1. Primary Agent. The Principal hereby appoints [AGENT_NAME], whose address is [AGENT_ADDRESS] and telephone [AGENT_PHONE], as the Principal’s health care agent (the “Agent”).
2. Alternate Agents.
   a. First Alternate: [1ST_ALTERNATE_NAME], address [ ], phone [ ].
   b. Second Alternate: [2ND_ALTERNATE_NAME], address [ ], phone [ ].
   Each Alternate Agent shall serve successively in the order listed if every preceding appointee is unable, unwilling, or legally disqualified to serve.
3. Determination of Incapacity. The Agent’s authority becomes effective when (i) the Principal’s attending physician or licensed psychologist, and one additional physician or psychologist, determine in writing that the Principal lacks sufficient understanding or capacity to make or communicate health care decisions, or (ii) as otherwise provided under the Act.

B. Grant of Authority

Subject to the limitations set forth herein and under applicable law, the Agent is authorized to:
1. Consent to, refuse, or withdraw any medical or surgical procedure, test, treatment, or intervention.
2. Admit, transfer, or discharge the Principal from any health-care facility.
3. Contract for any health-care service on the Principal’s behalf, including execution of waivers or releases of liability.
4. Access, review, and authorize disclosure of the Principal’s medical records and other protected health information (“PHI”).
5. Employ and discharge physicians, dentists, nurses, therapists, and other health-care personnel.
6. Take any lawful action necessary to carry out the above decisions, including signing documents, consents, and releases, and applying for public or private benefits to defray the cost of care.
7. Delegate decision-making authority to a successor fiduciary in emergency circumstances for up to thirty (30) days, provided that such delegation is promptly documented and delivered to the Principal’s primary attending physician.

[// GUIDANCE: Counsel may insert additional or more specific powers, or delete any not desired.]

C. End-of-Life Instructions

1. Guiding Preferences. The Principal’s preference is that [SELECT: “life-prolonging measures be withheld or withdrawn if such measures would only delay the moment of death” / “all medically appropriate measures be taken to prolong life” / “Agent follow the Principal’s Living Will executed on [DATE]”].
2. Pain Relief. The Agent is authorized to approve any medication or procedure, even if it may hasten death, to alleviate pain or discomfort.
3. Do-Not-Resuscitate (DNR). The Agent may execute or revoke a DNR order consistent with the Principal’s expressed wishes and applicable regulations of the N.C. Department of Health and Human Services.

D. HIPAA Authorization

Pursuant to 45 C.F.R. § 164.502(g), the Principal designates the Agent (and any duly acting Alternate Agent) as the Principal’s “personal representative” for all purposes under HIPAA, with full authority to obtain, use, disclose, and re-disclose PHI, including mental-health and substance-abuse information, effective immediately and surviving the Principal’s death for a period of six (6) years or as otherwise permitted by law.

E. Organ, Tissue, and Anatomical Gifts

The Agent is [SELECT: “authorized” / “not authorized”] to make anatomical gifts of the Principal’s organs and tissues for transplantation, therapy, research, or education under Article 19 of Chapter 130A of the N.C. General Statutes.

F. Nomination of Guardian

If a court determines that the appointment of a guardian of the person is necessary, the Principal nominates the then-acting Agent to serve in that capacity.

IV. REPRESENTATIONS & WARRANTIES

1. Principal Representation. The Principal affirms that:
   a. The Principal is at least eighteen (18) years of age and of sound mind.
   b. The execution of this Instrument is voluntary and free from undue influence.
2. Agent Representation. By signing the Acceptance in Section X, the Agent represents that he or she:
   a. Is legally competent and not disqualified under N.C. Gen. Stat. § 32A-20.
   b. Will act in Good Faith and in the Principal’s best interests, consistent with any known wishes and the Principal’s moral and religious beliefs.

V. COVENANTS & RESTRICTIONS

1. Fiduciary Duty. The Agent shall act with the care, competence, and diligence ordinarily exercised by agents in similar circumstances and shall not delegate decision-making authority except as expressly permitted herein.
2. Compensation. Except for reasonable out-of-pocket expenses, the Agent shall serve without compensation unless otherwise agreed in writing with the Principal.
3. Conflicts of Interest. The Agent shall promptly disclose any material conflict of interest to the Principal’s attending physician and any named Alternate Agent.
4. Record-Keeping. The Agent shall maintain contemporaneous records of material health-care decisions and provide such records to the Principal, a lawfully appointed guardian, or a court upon request.

VI. DEFAULT & REMEDIES

1. Events of Default. The following constitute “Events of Default” by the Agent:
   a. Breach of fiduciary duty or failure to act in Good Faith;
   b. Incapacity, resignation, or death of the Agent without a qualified Alternate Agent available;
   c. Judicial determination of misfeasance, malfeasance, or abuse.
2. Notice & Cure. Any interested person may provide written notice to the Agent and the Principal’s attending physician alleging an Event of Default. The Agent shall have seventy-two (72) hours to cure, unless immediate relief is required.
3. Remedies. Upon an uncured Event of Default, the then-serving Alternate Agent is automatically vested with authority. Interested persons may also petition the clerk of superior court for injunctive or other equitable relief. Attorney fees may be awarded against an Agent who acts other than in Good Faith.

VII. RISK ALLOCATION

1. Indemnification. The Principal shall indemnify and hold harmless the Agent from any loss, liability, or expense (including reasonable attorney fees) arising from actions taken in Good Faith under this Instrument, except for willful misconduct or gross negligence.
2. Limitation of Liability. The Agent shall not be liable for any decision made in Good Faith and in reliance on physicians’ or other professionals’ advice.
3. Insurance. The Agent is encouraged, but not required, to obtain and maintain fiduciary liability insurance covering acts performed under this Instrument.
4. Force Majeure. The Agent shall not be liable for failure or delay in performance resulting from causes beyond the Agent’s reasonable control, including natural disasters, acts of war, or system failures.

VIII. DISPUTE RESOLUTION

1. Governing Law. This Instrument is governed by the substantive laws of the State of North Carolina (“state_healthcare_law”).
2. Forum Selection. Exclusive venue for all proceedings arising under this Instrument shall lie with the clerk of the superior court (probate division) of the county where the Principal resides (“state_probate_court”).
3. Arbitration & Jury Waiver. Arbitration is not available and the parties do not waive any right to a jury trial to the extent applicable law affords one.
4. Injunctive Relief. Nothing herein limits a court’s power to grant expedited injunctive or declaratory relief to enforce health-care directives.

IX. GENERAL PROVISIONS

1. Amendment & Revocation.
   a. Amendment. The Principal may amend this Instrument in writing, signed, witnessed, and notarized with the same formalities as the original.
   b. Revocation. This Instrument may be revoked (i) by a signed and dated writing, (ii) by physical destruction with intent to revoke, or (iii) automatically upon execution of a subsequent health-care power of attorney, as provided under N.C. Gen. Stat. § 32A-22.
2. Copies. Photocopies or electronically transmitted copies of this Instrument shall have the same force and effect as the original.
3. Severability. If any provision is held invalid, the remaining provisions shall remain enforceable, and the Instrument shall be construed to give maximum effect to the Principal’s intent.
4. Integration. This Instrument, together with any attached schedules or exhibits, constitutes the entire health-care power of attorney agreement between the parties.
5. Successors & Assigns. The rights and duties created herein inure to the benefit of and are binding on the Agent, Alternate Agents, and their respective successors but may not be assigned.
6. Electronic Signatures. The parties may execute this Instrument with electronic signatures to the extent permitted by N.C. Gen. Stat. § 10B-101 et seq. and other applicable law.

X. EXECUTION BLOCK

A. Principal’s Signature

I, [PRINCIPAL_NAME], the Principal, sign my name to this Health Care Power of Attorney on the date below and, being first duly sworn, do declare to the undersigned witnesses and notary that I sign it willingly, that I execute it as my free and voluntary act, and that I am eighteen (18) years of age or older, of sound mind, and under no undue influence.

[PRINCIPAL_NAME] – Principal
Date: ____

B. Witness Attestation

We, the undersigned witnesses, affirm that the Principal signed and acknowledged this Instrument in our presence, that we are at least eighteen (18) years of age, not named as Agent or Alternate Agent, not related to the Principal by blood, marriage, or adoption, not directly involved in the Principal’s health-care, and not entitled to any portion of the Principal’s estate.

Witness #1: _____ Address: ____ Date: ___

Witness #2: _____ Address: ____ Date: ___

C. Notary Acknowledgment

State of North Carolina
County of ______

I, ______, a Notary Public, certify that [PRINCIPAL_NAME] personally appeared before me this day, acknowledged the due execution of the foregoing Health Care Power of Attorney, and swore to the truth of the statements therein.

Date: ___

Notary Public
My Commission Expires: __

D. Agent’s Acceptance

I, [AGENT_NAME], hereby accept appointment as Agent and affirm that I will act in Good Faith and in accordance with the Principal’s wishes and the Act.

[AGENT_NAME] – Agent
Date: ____

[// GUIDANCE: Obtain similar signed acceptances from each Alternate Agent for best practice.]

End of Document