Planning for retirement involves more than just financial considerations. One of the most overlooked yet crucial aspects is medical planning. As you age, healthcare needs often become more complex and expensive. A plan can give you peace of mind and ensure your wishes are respected, even if you can’t communicate them yourself.

So, let’s examine medical planning in retirement, specifically focusing on the legal tools available under North Carolina law. From Healthcare Power of Attorney to living trusts, we’ll guide you through the options you have to secure your future health care needs.

Healthcare Power of Attorney (POA)

A Healthcare Power of Attorney is a legal document allowing you to appoint someone (an agent) to make healthcare decisions for you if you cannot. This is a critical tool, especially for those entering retirement age when health issues may become more prevalent.

Advance care planning helps you to stay ready in case someone else needs to work with health care providers to make decisions for you.

What is a Healthcare POA?

In simple terms, a Healthcare POA is a way to ensure that someone you trust will make medical decisions on your behalf if you can’t. This could include decisions about medical treatments, surgeries, or end-of-life care. You can choose a family member or friend you trust and continue making your own decisions unless you’re no longer able.

If you become incapacitated or can’t communicate, your legal POA documents and advance care plan provide instructions about your care options and preferences.

Importance in Medical Decision-Making

Having a Healthcare POA relieves your family members from the burden of making difficult decisions without knowing what you would have wanted. It can also prevent potential legal disputes about your health care wishes among family members.

North Carolina Statutes

According to North Carolina General Statutes Chapter 32C, Article 3, Section 32C-3-301, a Healthcare POA must be in writing, signed in the presence of two qualified witnesses, and acknowledged before a notary public.

The statute also outlines an agent’s powers, which can include making decisions about your medical treatment, choosing healthcare providers, and accessing medical records.

Durable General Power of Attorney

The Durable General Power of Attorney is another essential tool in your medical planning toolkit. Unlike a Healthcare POA specifically for healthcare decisions, a Durable General POA is broader and can cover various aspects, including financial matters.

What is a Durable General POA?

A Durable General Power of Attorney is a legal document that allows you to appoint an agent to act on your behalf in various situations. This could range from managing your finances to making healthcare decisions if the Healthcare POA does not cover them.

Differentiating Between Healthcare POA and Durable General POA

While a Healthcare POA focuses solely on medical decisions, a Durable General POA can encompass more.

Having both in place is crucial to ensure comprehensive coverage of your needs. For example, a Durable Power of Attorney could manage your financial assets to pay for your medical care if you couldn’t. A durable general power of attorney could manage almost anything for you!

North Carolina Statutes

According to the same North Carolina General Statutes Chapter 32C, Article 3, Section 32C-3-301, a Durable General POA also needs to be in writing, signed in person in the presence of two qualified witnesses, and acknowledged before a notary public.

The “durable” aspect means that the POA will remain in effect even if you become incapacitated, which is particularly important for those planning for retirement and potential healthcare needs.

Having a Durable General POA that complies with North Carolina law can ensure that your financial and healthcare needs are met, even when you can’t make those decisions yourself.

Living Wills & Advance Directives

A living will is another important document in your medical planning journey. Unlike a Healthcare POA, which appoints someone else to make decisions, a living will, or a list of advance directives allows you to state your wishes regarding medical treatment directly.

What is a Living Will or Advance Directive?

A living will is a written document that outlines your preferences for medical treatment in situations where you cannot communicate your wishes. This could include decisions about life-sustaining measures, such as resuscitation or mechanical ventilation.

According to the North Carolina statutes, an advance directive, specifically in the form of a living will, may cover the following decisions:

• Withholding or Discontinuing Life-Prolonging Measures: Decisions about whether or not to receive treatments that would delay the dying process 
• Artificial Nutrition and Hydration: Specifies whether or not you wish to receive artificial nutrition (food) and hydration (water) 
• Palliative Care: Includes your preferences for receiving medication or other treatments that alleviate pain but do not prolong life.
• Conditions Under Which These Decisions Apply: Specifies the health conditions or circumstances under which health decisions should be implemented. Situations may include terminal illness, persistent vegetative state, or incurable conditions.

By creating a living will, you can ensure your specific wishes regarding medical decisions are legally documented and respected.

How Does it Differ from a Healthcare POA?

While a Healthcare POA designates an agent to make medical decisions for you, a living will spells out what those decisions should be. In essence, a living will provides guidance to your hospital, Healthcare POA, and medical team about your treatment preferences.

North Carolina Statutes

In North Carolina, living wills and advance directives fall under General Statutes Chapter 90, Article 23, which differs from the statutes governing POAs. Like the POAs, a living will must be in writing and signed in the presence of two qualified witnesses.

However, it specifically deals with your wishes regarding life-prolonging measures and only comes into play when you cannot make or communicate those decisions yourself.

By having a living will that aligns with North Carolina law, you can provide clear instructions about your healthcare preferences, reducing the burden on your loved ones and ensuring your wishes are respected.

Living Trusts

Living trusts offer another avenue for medical planning, although they are generally more associated with financial and estate planning. A living trust can include provisions for your healthcare, making it a versatile tool in your planning arsenal.

What is a Living Trust?

A living trust is a legal entity you create to hold and manage your assets. You can be the trustee while you’re alive and capable, allowing you full control over your assets. A successor trustee takes over the management of the trust if you become incapacitated or pass away.

How It Can Be a Tool for Medical Planning

While living trusts are often used for avoiding probate and managing assets, they can also include instructions for your healthcare. For example, you can specify the kind of medical treatment you wish to receive or avoid, similar to an advance directive.

North Carolina Statutes

Like other legal documents, a living trust must be in writing and properly executed to be valid. The trust can include provisions that activate upon your incapacity. You can manage this type of trust while living. It provides a seamless transition of decision-making authority to a successor trustee when you pass away.

By incorporating healthcare provisions into a living trust that complies with North Carolina law, you can create a comprehensive medical plan that integrates with your financial and estate planning. This ensures that all your needs are coordinated, providing peace of mind for you and your loved ones.

Court-Appointed Guardianship (Occurs Without a Medical Plan)

Healthcare POAs, Durable General POAs, living wills, advance directives, and living trusts are the most commonly used tools for medical planning. However, there is another option for emergencies such as incapacitation or incompetence.

Guardianship as a Last Resort

If you haven’t set up any of the aforementioned legal tools and become incapacitated, a court may appoint a guardian to make decisions for you.

This is a last resort due to the loss of personal autonomy and the legal complexities involved.

North Carolina Statutes

Guardianship falls under North Carolina General Statutes Chapter 35A. The first step to receiving a guardian is a court hearing to see if you need a guardian due to incompetence.

If the court finds you incompetent, they appoint a guardian. It’s often a lengthy and costly process. The appointed guardian has the legal authority to make decisions on your behalf. These decisions may include healthcare, personal, and financial decisions. Guardianship is less ideal than outlining your wishes in advance directives and other legal tools.

Additionally. with guardianship, you don’t appoint a person you trust to make decisions as with a POA. Instead, the court appoints the person who will make decisions for you

You can make more informed decisions during your medical planning process by being aware of guardianship. However, consult with a qualified attorney to tailor your medical planning to your specific needs.

Medical Planning Matters

Medical planning is essential to preparing for retirement, as healthcare needs become more complex with age. Legal tools like Healthcare POAs, Durable General POAs, living wills, advance directives, and living trusts can provide peace of mind. They ensure that others respect your healthcare wishes. 

It makes sense to consult a qualified attorney for personalized advice tailored to your specific needs. It’s possible to secure your future health needs and reduce the burden on your loved ones. 

An Experienced Estate Planning Attorney Can Help

At Vail Gardner Law Firm, we understand that medical planning is critical to preparing for your future. Our experienced estate planning attorneys are well-versed in North Carolina statutes and can help you understand the legal aspects of planning.

From drafting Healthcare POAs and living wills to setting up living trusts, we tailor our services to meet your specific needs. Secure your future and ease the burden on your loved ones by consulting with our qualified team for your medical planning needs.

Get in touch today and start finding solutions for your future!