Why Every Adult (Not Just Retirees) Needs a Healthcare Power of Attorney
A 19-year-old college student is seriously injured in a car accident two hours from home. Her parents rush to the hospital, only to find that the staff will not discuss her condition in detail. A 32-year-old is hospitalized after a sudden illness, and his long-term partner of eight years has no legal say in his care. A 45-year-old in the middle of a divorce lands in the ICU, and the spouse she is separating from is still first in line to make her medical decisions.
None of these people are retirees. All of them would have benefited from a Healthcare Power of Attorney.
In our earlier post, Power of Attorney vs. Healthcare Power of Attorney in South Carolina, we explained what each document does and how to choose an agent. This post answers a different question: who makes your medical decisions if you never sign one, and why that matters long before retirement.
Turning 18 Changes Everything
Once a person turns 18, they are a legal adult. Parents no longer have automatic authority to make medical decisions for them, and federal privacy law under HIPAA generally protects their medical information like any other adult’s. Health care providers have some discretion to share information with family members involved in a patient’s care, but parents often find that hospitals are cautious about what they will discuss and with whom.
For parents of college students, young adults in the military, and new graduates living on their own, that change can come as a shock during an emergency.
Who Decides If You Don’t Have a Healthcare Power of Attorney?
If you cannot make or communicate your own medical decisions and have not named a healthcare agent, South Carolina’s Adult Health Care Consent Act sets out who may decide for you. Under S.C. Code § 44-66-30, the order of priority is:
Court-appointed guardian, within the scope of authority.
Attorney-in-fact under a qualifying durable power of attorney, within the scope of authority.
Spouse, subject to statutory separation exceptions.
Adult children, with a majority rule when more than one is reasonably available.
Parent.
Adult siblings, subject to the majority rule.
Grandparent, subject to the majority rule.
Other qualifying adult relatives.
Person authorized by another statutory provision.
Qualifying person with an established relationship, when higher-priority persons are unavailable and statutory conditions are satisfied.
This list works reasonably well for some families. For many others, it creates problems.
Where the Default Rules Fall Short
If you have an unmarried partner, that person is not on the list as a family member and generally qualifies only at the very end, if no listed relatives are available. If you are separated but not yet divorced, your spouse may still have first priority unless certain court orders or a signed settlement agreement are in place, which is rarely what someone in the middle of a divorce would want.
For young adults whose parents are divorced, both parents have equal priority, and they may not agree. Adults with several grown children face a similar problem, because decisions are made by a majority of the children reasonably available, which can lead to delay or conflict at the worst possible moment. The list also does not account for estrangement. The statutory hierarchy may give priority to relatives who are not the people you would personally choose. Although South Carolina law contains protections when healthcare providers know that a patient did not want certain individuals involved, a properly executed Healthcare Power of Attorney provides a clearer way to identify your preferred decision-maker.
When no one agrees, the family may have to go to court for a guardianship, which takes time and money while medical decisions wait.
A Healthcare Power of Attorney replaces this one-size-fits-all list with the person you actually trust.
When Your Agent Steps In
Under the South Carolina statutory form, your healthcare agent’s authority takes effect only during a period when you are unable to make or communicate your own decisions. As long as you can decide for yourself, you stay in control. The form also lets you state your wishes about life-sustaining treatment, including artificial nutrition and hydration, so your agent is not left guessing.
South Carolina’s Requirements
A South Carolina Healthcare Power of Attorney must meet specific statutory requirements under S.C. Code §§ 62-5-501 through 62-5-504:
You must be at least 18 years old and of sound mind.
The document must be substantially in the form set out in South Carolina law.
It must be signed and dated by you, and signed by two witnesses.
A Healthcare Power of Attorney must be signed and dated and witnessed by at least two qualified individuals. South Carolina law imposes specific restrictions on who may serve as a witness, including restrictions involving family relationships, financial interests, healthcare providers, and healthcare-facility employees.
Your agent must be at least 18 and of sound mind. With limited exceptions for relatives, your agent cannot be your current health care provider or an employee of your provider or nursing facility.
Notarization is optional under the statutory form, but it is commonly included. Generic online forms may not match South Carolina’s requirements, and a document that is not executed correctly may not be honored when it matters.
Who Should Have One
Young adults turning 18, especially those leaving for college, joining the military, or moving away from home
Unmarried couples who want their partner to be involved in medical decisions
Newly married couples who want to name backups and state their own wishes
Blended families where adult children and a spouse may not agree
Single adults without a spouse or children
People going through a separation or divorce
Anyone with a chronic health condition or upcoming surgery
Frequent travelers and people who work in higher-risk jobs
In other words: nearly every adult.
Two Companion Documents Worth Adding
HIPAA authorization: Lets the people you name receive your medical information, even if they are not making decisions. This is especially useful for parents of young adults and for unmarried partners.
Living will: States your wishes about life-sustaining treatment if you are terminally ill or permanently unconscious.
A Durable Power of Attorney for financial matters is the other key document, and we cover how it differs in our earlier post.
Frequently Asked Questions
Does my college student really need a Healthcare Power of Attorney?
A Healthcare Power of Attorney is worth considering once your child turns 18, particularly if they are leaving home for college. It allows them to designate someone they trust to make healthcare decisions if they become unable to do so. A separate HIPAA authorization may also be useful.
Can a parent be named as an agent?
Yes. Relatives can serve as healthcare agents. The restrictions on relatives apply to the witnesses, not the agent.
My parents are divorced. Who decides for me if I’m hurt?
Without a Healthcare Power of Attorney, both parents have equal priority under South Carolina’s default list. If they disagree, decisions can be delayed. Naming one parent as your agent, and the other as a backup if you wish, avoids that problem.
Can my boyfriend or girlfriend make medical decisions for me?
Not automatically. An unmarried partner is not on South Carolina’s default list as a family member and can generally qualify only if no listed relatives are available. A Healthcare Power of Attorney is the most reliable way to give your partner that authority.
Is a HIPAA authorization enough by itself?
No. A HIPAA authorization lets someone receive your medical information, but it does not give them authority to make decisions. Most young adults should sign both.
The Bottom Line
Medical emergencies do not wait until retirement. Without a Healthcare Power of Attorney, South Carolina law decides who speaks for you, and that may not be the person you would choose. Signing one is a simple step that lets you, not a statute or a court, decide who makes your medical decisions.
Stegall Law prepares Healthcare Powers of Attorney, HIPAA authorizations, Durable Powers of Attorney, and wills for individuals and families throughout the South Carolina Lowcountry, including Dorchester, Berkeley, and Charleston Counties. Whether you are sending a child to college or updating documents you signed years ago, contact Stegall Law to schedule a consultation.
Disclaimer: This article is for general informational purposes only and is not legal advice. Every situation is different, and reading this article does not create an attorney-client relationship. If you have questions about your specific situation, consult a qualified South Carolina attorney.
Sources
S.C. Code § 44-66-30 (Adult Health Care Consent Act, priority of surrogate decision-makers): https://www.scstatehouse.gov/code/t44c066.php
S.C. Code §§ 62-5-501 through 62-5-504 (Health Care Power of Attorney requirements and statutory form): https://www.scstatehouse.gov/code/t62c005.php
U.S. Department of Health and Human Services, HIPAA and FERPA joint guidance (student health records): https://www.hhs.gov/sites/default/files/2019-hipaa-ferpa-joint-guidance.pdf
National Law Review, decision-making for college students age 18 and older: https://natlawreview.com/article/safeguarding-your-role-decision-making-college-students-unexpected-situations