The Beach, the ER, and a Legal Nightmare: A Healthcare Power of Attorney Story

Name: ESTATE PLANNING – Avoid Probate and Take Control of Your Future
Start: 2026-06-22T14:00:00-04:00
End: 2026-06-22
Location: Bistro 214

Imagine. You’re at the beach with your spouse, enjoying a mojito, when all of a sudden…

SHARK ATTACK!

Now your spouse is in the hospital in Wilmington and is incapacitated; and the staff is asking if your spouse has a Healthcare Power of Attorney (HCPOA). Sad day, as you remember that you put off getting your estate documents in place because you felt it was “too early” or you were “too young” to be getting those documents in place. The hospital tells you that without a proper HCPOA, according to North Carolina law, a spouse cannot make those decisions by default. You, as a spouse, now come second to whoever is appointed as guardian through the courts.

Now you probably wish you had gone through with your estate plan.

Just a Scenario?

Stories like those above happen more frequently than one would imagine. Many clients come in and tell us that they’ve “put off” or “held back” on creating and managing their estate plans because they feel like they are too young, too healthy, or that their spouse will automatically be able to handle these decisions when the time comes. While these are all valid thoughts and concerns, for some estate planning documents, like the Healthcare Power of Attorney, planning in advance is the most valuable thing you can do for yourself and your loved ones.

What is a Healthcare Power of Attorney?

A Healthcare Power of Attorney (HCPOA) is a legal document that appoints and allows an agent to make certain healthcare decisions for someone when they have become incapacitated and can no longer make their own decisions. This document will oftentimes have “instructions” from the creator on what to do in certain situations, like artificial nutrition or hydration. Additionally the HCPOA will contain wishes for specific medical procedures, like blood transfusions or certain end of life care and rituals.

This is a vital document to get as early as feasible. Once someone is incapacitated, they can no longer make the decision to sign over healthcare decisions to a specific person. Without a signed HCPOA, North Carolina law leaves it up to a priority system to choose who can make those healthcare decisions,

NC Guardianships

As per N.C.G.S. § 90-21.13 and § 32A-19, a court appointed guardian has first priority over healthcare decisions, while a spouse has second priority. This means that in a situation where you or a loved one may be incapacitated, the party who wants to make decisions for you will have to go through a guardianship proceeding before they can successfully make those decisions. This is a long, emotional, and expensive process. Many healthcare matters are incredibly time sensitive, so making sure you have a signed HCPOA before you need it is paramount.

You are never “too young” to have a Healthcare Power of Attorney in place. Once you turn 18, you no longer have a parent as a guardian, and if there ever was an accident that caused you to become incapacitated, whoever wanted to make decisions for you would have to go to court. In instances where someone is diagnosed with a serious illness, having a HCPOA at a younger age is more helpful than waiting until it’s too late.