South Carolina Trust and Estate Law Blog

By MillerLaw



South Carolina Trust
and Estate Law Blog

Health Care Powers of Attorney & Living Wills

August 20, 2009

A health care power of attorney designates an agent to make decisions regarding health care when a person cannot make those decisions due to incompetence or unconsciousness.

In South Carolina, only one person can serve as your health care agent at one time. You may designate another person to serve if the first agent can not, but they cannot be designated to act at the same time.

A living will is simply instruction that a person gives regarding “end of life” medical decisions. The United States Supreme Court has stated that a person has a liberty interest in making decisions regarding end of life decisions and to refuse medical treatment. However, it is required that there be “clear and convincing” evidence of a person’s intention regarding the refusal of medical care. The evidence is generally found in a living will, or advance health care directive.

It is advised that instruction be given to your health care agent on whether you want to be aggressively treated if your prognosis is poor. Otherwise, your agent will not have authority to make such decisions. The instructions can be given in a separate living will form. They can also be given directly on the health care power of attorney form.  It is important to realize that deferral will be made to instructions in the living will over the health care power of attorney, in those situations where the living will controls.  There is an interplay between the health care power of attorney and the living will and it is best to seek a lawyer’s advice to ensure that your wishes are clearly (and legally) expressed.

It is also advisable that you execute a HIPAA Release in favor of your health care agent. The standard health care power of attorney includes this HIPAA Release languagee

These three forms are the backbone of your advance health care planning. You can meet with an estate planning attorney who can prepare a set of these forms for you and supervise their execution for a rather nominal fee; typically no more than a one hundred and fifty dollars. As I always say, the money and time spent now could save a lot of grief later on.

Like any decent lawyer, I need to add a disclaimer here: unfortunately, it is impossible to offer comprehensive legal advice over the internet, no matter how well researched or written. And remember, reviewing this website and my blogs doesn’t make you a client of my Firm: before relying on any information given on this site, please contact a legal professional to discuss your particular situation.

Filed under: Uncategorized — clofmiller

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