North Carolina § 32A-20 - Effectiveness and duration; revocation.

§ 32A-20. Effectiveness and duration; revocation.

A health care power of attorney shall become effective when and if the physician or physicians or, in the case of mental health treatment, physician or eligible psychologist as defined in G.S. 122C-3(13d), designated by the principal determine in writing that the principal lacks sufficient understanding or capacity to make or communicate decisions relating to the health care of the principal, and shall continue in effect during the incapacity of the principal. The determination shall be made by the principal's attending physician or eligible psychologist if the physician or physicians or eligible psychologist designated by the principal is unavailable or is otherwise unable or unwilling to make this determination or if the principal failed to designate a physician or physicians or eligible psychologist to make this determination. A health care power of attorney may include a provision that, if the principal does not designate a physician for reasons based on his religious or moral beliefs as specified in the health care power of attorney, a person designated by the principal in the health care power of attorney may certify in writing, acknowledged before a notary public, that the principal lacks sufficient understanding or capacity to make or communicate decisions relating to his health care. The person so designated must be a competent person 18 years of age or older, not engaged in providing health care to the principal for remuneration, and must be a person other than the health care agent. For purposes of exercising authority described in G.S. 32A-19(b), however, a health care power of attorney shall be effective following the death of the principal without regard to the principal's understanding or capacity when the principal was living. Nothing in this section shall be construed to prevent a principal from revoking a health care power of attorney. Except for purposes of exercising authority granted by a health care power of attorney with respect to anatomical gifts, autopsy, or disposition of remains as provided in G.S. 32A-19(b), a health care power of attorney is revoked by the death of the principal. A health care power of attorney may be revoked by the principal at any time, so long as the principal is capable of making and communicating health care decisions. The principal may exercise this right of revocation by executing and acknowledging an instrument of revocation, by executing and acknowledging a subsequent health care power of attorney, or in any other manner by which the principal is able to communicate an intent to revoke. This revocation becomes effective only upon communication by the principal to each health care agent named in the revoked health care power of attorney and to the principal's attending physician or eligible psychologist. The authority of a health care agent who is the spouse of the principal shall be revoked upon the entry by a court of a decree of divorce or separation between the principal and the health care agent; provided that if the health care power of attorney designates a successor health care agent, the successor shall serve as the health care agent, and the health care power of attorney shall not be revoked. History (1991, c. 639, s. 1; 1993, c. 523, s. 2; 1998-198, s. 1; 1998-217, s. 53; 2005-351, s. 2; 2006-226, s. 32; 2011-344, s. 10; 2012-18, s. 3.11.) Editor's Note. - Session Laws 1993, c. 523, which amended this section, in s. 4 provides that powers of attorney made before October 1, 1993 remain in full force and effect. Session Laws 2011-344, s. 14, as amended by Session Laws 2012-18, s. 3.11, provides: "Except as provided below, this act becomes effective January 1, 2012, and applies to estates of decedents dying on or after that date: "(1) Subject to subdivision (3) of this section, Section 10 of this act becomes effective January 1, 2012, and applies to health care powers of attorney executed before, on, or after that date. "(2) Subject to subdivision (3) of this section, Sections 11, 12, and 13 of this act become effective January 1, 2012, and apply to trust proceedings commenced before, on, or after that date. "(3) Notwithstanding the provisions of subdivisions (1) and (2) of this section: "a. In any proceeding pending before the effective date of this act [effective date of Session Laws 2011-344, January 1, 2012], the provisions in Sections 10, 11, 12, and 13 of this act shall not apply retroactively and shall not apply prospectively if the court finds that application of a newly effective provision would substantially interfere with the effective conduct of a judicial proceeding or prejudice the rights of the parties. "b. An act done before the date of enactment of this act [date of enactment of Session Laws 2011-344, June 27, 2011] is not affected by this act, and a right that was acquired, extinguished, barred, or commenced to run prior to the date of this act is not affected by this act." Effect of Amendments. - Session Laws 2005-351, s. 2, as amended by Session Laws 2006-226, s. 32, effective October 1, 2005, and applicable to powers of attorney created on, before, or after that date, added the exception at the beginning of subsection (b). Session Laws 2011-344, s. 10, added the last two sentences in subsection (a). For effective date and applicability, see editor's note. Legal Periodicals. - For comment on the standard of mental capacity in North Carolina for legal transactions of the elderly, see 32 Wake Forest L. Rev. 563 (1997).