COVID-19: Locating and Registering Health Care Powers of Attorney

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The Covid-19 pandemic has caught nearly everyone off guard, with epidemiologists and health care professionals daily warning us of the unknowns ahead regarding the success of our social distancing measures and for how many months the virus will persist in our society. For those who have put off executing their own health care powers of attorney, such an easily deferred “to do” item has undoubtedly become front of mind for many people, particularly the elderly, those already in poor health, as well as the people who love them. Fortunately, there are a number of available templates online. For those people who have executed an HCPOA, the time has come to ensure that family members, your primary physician (and care facility if applicable) have a copy, and to consider registering the HCPOA with the North Carolina Secretary of State’s central registry.

For family members concerned about the health of a parent, grandparent or other loved one as the course of the Covid-19 pandemic plays out, the time has come to ask whether an HCPOA has been executed, which specific person has been designated as the health care agent, and to request a copy. In the event of an onset of Covid-19 symptoms requiring immediate medical care, this critical item may be overlooked in the process of transitioning to a care facility such as a hospital. It is very likely filed away with other estate planning documents and may not be easily to speedily locate. Indeed, one of the first questions asked upon admission is whether the incoming patient has an HCPOA executed.

If you are a family member looking for an executed HCPOA in your loved one’s household, be sure to search for any files marked “estate planning” as HCPOAs will often have been executed along with a will or a trust. Often such documents are held in a binder assembled by the lawyer who drafted the documents and oversaw the execution of them. Once located, a copy should suffice for the health care facility. If you cannot locate the document but remember the lawyer who drafted it, you can try and contact that office and request a copy (many lawyers now scan executed documents for just such a purpose) (Note due to confidentiality reasons, the lawyer may only provide a copy at the request of the person who executed it, or their spouse if the couple both met with the lawyer).

In short, a health care power of attorney (HCPOA) is a document legally empowering a trusted individual or several people to discuss and approve treatment on another’s behalf when that person – the patient – is unable to communicate their own needs and desires to their presiding physician. Valid execution, under North Carolina General Statute 32A-15, requires the signature of two disinterested persons who personally witness the signing of the document by the would-be patient, and attest to same in front of a notary public. The person executing the document also must sign in the presence of a notary. It is important to note that the witnesses cannot i) be related within the third degree to the principal or principal’s spouse, ii) has no reason to believe themselves a testate or intestate heir of the principal, iii) is not an attending physician or paid employee of the health care facility caring for the principal, or iv) does not have a claim against the principal’s estate at the time of execution. In short, family members cannot serve as witnesses. However, health care facilities often have a system in place to help a patient and their family execute such a document, with a notary on hand (who may be a paid employee of the facility) and volunteers (who are not paid by the facility) who may serve as witnesses to the act of signing.

While private attorneys routinely draft and supervise execution of these documents for their clients, there are online examples available. An emergency situation will likely not allow for engaging an attorney to draft and oversee the execution of an HCPOA. Below are several versions of a generic and downloadable health care power of attorney provided by certain institutions, including Duke Health, Cone Health, and the North Carolina Secretary of State (for a fee of $10). Even the North Carolina General Statute authorizing execution of HCPOAs contains a printed example (see link above). Most of these templates provide the principal with choices of decision powers to confer on the designated health care agent, and the principal authorizes the decision with his or her initials.

Note also that, because such HCPOA documents are sometimes lost or forgotten in an emergency, the North Carolina Secretary of State (NCSOS) offers a statewide central registry of such HCPOA documents that are easily accessible by health care providers. (Though facilities may have the capacity to help a patient execute another HCPOA on site, the patient may not be cognizant enough to do so.) After filing a copy of your HCPOA, the NCSOS office will issue a wallet size card with a password you will use to retrieve the document from the NCSOS website. The fillable registration form is available at this NC Secretary of State link. The cost is $10 for registration of each document.