Sign Up Created with Sketch. Want to receive our thought leadership?     Sign Up

Like most states, North Carolina recognizes a person’s fundamental right to make his or her own health care decisions. Sometimes, however, it is not possible for a patient to make or communicate a health care decision. A patient may be unconscious, comatose, or otherwise incapable of making or communicating a health care decision. In these situations, North Carolina law has clarified who can consent to medical treatment for those patients who cannot make or communicate their own decisions.

N.C.G.S. § 90-21.13 provides the framework for a provider to determine who has the authority
to make the health care decisions for the incapable patient. I have outlined below in order of priority the following persons who can consent to or withhold consent for medical treatment for a person who is not able to make or communicate his or her own health care decisions.

  1. Someone holding a valid health care power of attorney (health care agent) to the extent authorized by the power of attorney, unless the court has appointed a guardian for the patient and also suspended authority of the health care agent.
  2. If there is no health care agent as defined in (1), a court-appointed guardian or general guardian.
  3. If there is no guardian as provided in (2), an attorney-in-fact who is granted power over health care decisions by a valid power of attorney.
  4. If there is no attorney-in-fact as provided in (3), the spouse of the patient.
  5. If there is no spouse as provided in (4), a majority of the patient’s reasonably available parents and adult children.
  6. If there are no reasonably available parents and adult children as provided in (5), then a majority of the patient’s reasonably available adult siblings.
  7. If there are no reasonably available adult siblings as provided in (6), then an individual who has an established relationship with the patient, who is acting in good faith on behalf of the patient and who can reliably convey the patient’s wishes.
  8. If none of the above are available, the patient’s attending physician may provide medical treatment to the patient without patient’s consent if another physician confirms patient’s condition and necessity for medical treatment provided. However, this confirmation by a second physician is not required if delay caused by obtaining confirmation would endanger the patient’s life or seriously worsen the patient’s condition.

The above-referenced listing is provided for use as a quick assessment tool. These provisions do not supersede the procedures for natural death in the absence of a declaration. Those procedures are only applicable where an “attending physician determines, to a high degree of medical certainty, that a person lacks capacity to make or communicate health care decisions and the person will never regain that capacity,” and the physician determines that person has an “incurable or irreversible condition that will result . . . death within a relatively short period . . . or is unconscious and, to a high degree of medical certainty, will never regain consciousness,” and there is confirmation of the condition in writing by a physician other than the attending one, and a “vital bodily function could be restored or is being sustained by life-prolonging measures.” In cases where those conditions are met and no instrument declaring intent for a natural death has been executed, life-prolonging measures may be withheld or discontinued under supervision of the attending physician with concurrence of the same persons in the same order as provided above for health care decisions under N.C.G.S. §90-21.13.

Julie Hampton, an attorney no longer with Poyner Spruill, was the original author of this article.

◀︎ Back to Thought Leadership