Vol. 3, No. 6, Pg. 22. South Carolina's New Health Care Power of Attorney Law.

• Author: By Patricia L. Harrison

South Carolina Lawyer

1992.

Vol. 3, No. 6, Pg. 22.

South Carolina's New Health Care Power of Attorney Law

22South Carolina's New Health Care Power of Attorney LawBy Patricia L. Harrison Delegating the authority to make medical decisions to a family member or friend is becoming a common method of planning for their future. . . . Several states have recognized the practical wisdom of such a procedure by enacting durable power of attorney statutes that specifically authorize an individual to appoint a surrogate to make health care decisions on behalf of the patient.

--Justice Sandra Day O'Connor

South Carolina recently became one of the states which has authorized a statutory health care power of attorney. When S.C. Code Ann. § 62-5-504 became law this year, it combined the statutory protection of the living will with the flexibility of the power of attorney.

The new statute provides a state-approved form (the "statutory form") which allows a person to designate a surrogate to make health care decisions. For an in-depth discussion of the benefits of the statutory form, see E. Patterson, Planning for Health Care Using Living Wills and Durable Powers of Attorney: A Guide for the South Carolina Attorney, 42 S.C. Law Review 3 (Spring 1991).

Since the enactment of the federal Patient Self-Determination Act, South Carolina lawyers have been receiving more inquiries from clients interested in signing living wills or health care powers of attorney (referred to collectively as advance directives for health care). Hospitals andnursing homes that accept Medicaid or Medicare funds now must

* provide every patient with information on the right to sign advance health care directives,

* ask whether the patient has executed such a document and

* record the patient's response. (See Harrison, Advance Health Care Directives, 3 S.C. Lawyer 2 (Sep./Oct. 1991) at 29.

Estate planners have routinely included the authority to make health care decisions in durable powers of attorney for some time. The South Carolina durable power of attorney statute (§ 62-5-501) was amended in 1990 to specify that the agent's powers may include "the power to consent or withhold consent on behalf of the principal to health care." It has been a common practice to couple a durable power of attorney which includes health care powers with a Declaration of Desire for Natural Death...