Have you ever been asked by a doctor, nurse, or the staff of a medical facility if you have a “health care power of attorney?” Have you ever wondered why you were being asked that question?  

Think, for a moment, about any medical procedure where the patient is under general anesthesia. Is it possible that something could go wrong, and that the doctors might need to perform additional procedures while the patient is still unconscious? What about any medical procedure involving an adult patient who has suffered a stroke that leaves them unable to communicate or who suffers from dementia or Alzheimer’s? Who, in either of those scenarios would the doctors ask for permission before performing a procedure? Without guidance from the patient, how would the person granting or denying the doctor permission to proceed know what the patient’s wishes are? In South Carolina, a health care power of attorney, is an advance health care directive which can provide your treating physicians with the answers to these questions if you are unable to do so yourself. In summary, a health care power of attorney allows you to name someone to both speak on your behalf and make decisions regarding your health care, if necessary.  

What is a Health Care Power of Attorney?

A “health care power of attorney” (“HCPOA”) is an estate planning document in which an individual (referred to as the “Principal”) appoints another individual or individuals as the Principal’s agent(s) (the “Agent”) for purposes of health care and end-of-life decisions. The Principal may provide the Agent with specific instructions or desires regarding the Principal’s end-of-life care through both formal and informal means. The South Carolina Statutory Health Care Power of Attorney Act provides a statutory form to streamline and assist the Principal’s instructions to his or her Agent (“South Carolina statutory HCPOA”). An Agent designated under a South Carolina statutory HCPOA may only make decisions regarding the Principal’s health care when the Principal is incapacitated and unable to so. The Principal formally provides his or her agent instructions through certain elections on the South Carolina statutory HCPOA:

  • Either allowing or prohibiting the agent to consent to the donation of the Principal’s tissue or organs for transplantation purposes.  
  • With respect to life sustaining treatment and tube feeding, the Principal may choose between three (3) options: 
    • Option 1: The Principal may grant the Agent discretion with respect to life sustaining treatment and tube feeding. In other words, the Agent is directed to weigh the burdens and benefits of a proposed course of treatment while taking various factors into consideration, including, but not limited to, what the Agent knows about the Principal, the advice of the Principal’s treating physicians, and the expense involved in the treatment.
  • Option 2: The Principal may provide a directive to withhold or withdraw life sustaining treatment or tube feeding. In other words, if in the opinion of the Principal’s treating physicians, the Principal has an incurable or irreversible condition, which is expected to result in the Principal’s death within a relatively short period of time, then the Agent’s discretion is removed and life-sustaining treatment and nutrition are not to be provided.
  • Option 3:  The Principal may provide a directive that the Principal receive the maximum amount of treatment. In other words, no matter the condition of the Principal, the expense incurred, the desires of the Agent, or the advice of the Principal’s treating physicians, the Principal will receive life sustaining treatment and tube feeding indefinitely.  

With respect to life sustaining treatment and tube feeding, it is important to consider the impact a Declaration of Desire for Natural Death (i.e., Living Will) may have on the Principal’s options outlined above. Whereas, HCPOAs focus on providing an Agent the ability to make health care decisions for the Principal during the Principal’s incapacity, Living Wills provide instruction with respect to the dying process only. As such, elections made regarding end of life care in a Living Will control and will be given effect regardless of the options selected in a HCPOA.  

What are the Basic Requirements for a HCPOA?

The statutory form HCPOA must be signed by the Principal and two (2) witnesses who are not related to the Principal. If the Principal is a patient in a health facility (for example, a hospital or nursing home) no more than one (1) of the witnesses may be an employee of that health facility.

The Agent designated must be at least eighteen (18) years old and of sound mind (that is, able to make health care decisions for the Principal). The Principal’s doctor or other health care provider treating the Principal when the HCPOA is executed (including employees of the health care provider and their spouses) may not serve as Agent unless the proposed Agent is related to the Principal.

The HCPOA should contain the current physical address and at least one (1) telephone number for each Agent. The South Carolina statutory HCPOA contemplates the nomination of one (1) initial agent, a first alternate agent, and a second alternate agent. If an agent dies, becomes legally disabled, resigns, refuses to act, or becomes unavailable, then the successors would act alone and in the order named.  

What if I do not have a HCPOA?

If you do not have a HCPOA and you become unable to make health care decisions or consent to health care procedures, decisions about your health care would be made under the South Carolina Adult Health Care Consent Act.

If you have any questions about health care powers of attorney or any other aspect of estate planning, we invite you to contact an attorney at Thomas, Fisher & Edwards, P.A. at (864) 232-0041.