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South Carolina


Who Will Make Your Medical Decisions in South Carolina if You are Incapacitated?

A healthcare power of attorney form

When a medical crisis arises, there are many questions asked about the potentially serious decision-making needs that arise. Is there a:

  • Health care directive?
  • Health care proxy?
  • Medical power of attorney?
  • Do not resuscitate?
  • What about HIPAA?

What do all of these terms mean? And what are the differences? Some have heard of these types of documents, but may not know exactly what they mean, whether they need them or what to do with them. Other people may not enjoy thinking about a future when they are not their own decision maker. No matter the situation, it is important that you plan for decision-making authority for your medical future.

What types of documents do I need?

You need some type of medical power of attorney and possibly a living will and HIPPA release. While different names are used in different states, these types of medical planning documents serve three main functions:

  • Allowing others to receive confidential health and medical information about you
  • Determining who will make medical decisions if you are unable to do so for yourself, and;
  • Which types of measures should or should not be taken to save your life, especially if there is a chance you would never recover enough to have the type of life you’d want (e.g. if a patient’s prognosis is that they will never wake up from a coma)

To make sure that these three concerns are properly anticipated, you need a document that explicitly states:

  • Who is to make your medical decisions if you are not able, and
  • Who makes decisions if your first choice person is not available or willing to make decisions

These documents must be properly drafted, executed, signed, and sometimes, witnessed and notarized, to ensure they will serve their function should the need arise.

What counts as incapacity?

When drafting your documents, you and your attorney will decide what the circumstances must be to conclude that you are incapacitated. Many times this is based on the determination of a personal physician, or sometimes the opinion of two physicians.

Who decides if a condition is inevitably terminal?

It is also important to write down whether you want “extraordinary measures” taken to save or prolong your life. Many people call this type of document a “Do Not Resuscitate” or DNR; however, it may be called a “Living Will.” The best way to make sure that you have the right documents in place with all of the required information is to talk with your attorney.

What about HIPAA?

In many cases, the first concern is for your family or friends’ ability to access your private medical information. The Health Insurance Portability and Accountability Act, commonly known as HIPAA, was a law put into place to protect the privacy of American patients. The rule protects any “individually identifiable health information” that is held by a medical or insurance provider or any business that serves medical professionals and might have access to sensitive medical information. The type of information that is protected includes:

  • The person’s past, present or future physical or mental health/condition
  • Any information on the health care provided to the person, and
  • Any payment information that may identify a patient who has received care

However, HIPAA was not created to get in the way of common sense medical situations. The law states that if a patient is present and has capacity prior to the disclosure, that the medical professional may give out helpful information to family or friends if the patient agrees. For instance, a doctor may tell a friend, family member or significant other information about the patient’s physical limitations, diet, medicine dosage, etc. if prior consent from the patient has been obtained. Additionally, a medical professional may use their professional discretion to share information with others if they believe it is in the best interest of the patient. E.g., keeping a spouse informed about surgery or recovery updates. These exceptions are discussed in 45 CFR 164.510(b) of the HIPAA law.

Even though HIPAA was written as a “common-sense law,” the best thing to do is to put a signed HIPAA release in place when the rest of your prior planning documents are drafted.

Who makes decisions if I don’t have any documents in place?

The person who would most likely make decisions would be a spouse, adult child, or sibling.

However, it is never a good idea to leave these things to chance. You never know if your spouse, most responsible child or dearest sibling will be available to make decisions. What if your estranged spouse or sibling who does not have your best interest in mind ended up in charge? Or an irresponsible adult child with a substance issue? It’s especially important to have the right documents in place if you and your partner are not married. The person who knows you best might be left out entirely. These documents can easily be drafted. Contact our South Carolina law office today and schedule an appointment so you can make sure the people making decisions about your future medical needs, are the people you choose.

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Columbia, SC 29201

Phone (803) 799-1700
Fax (803) 728-6718

331 E. Main St, Suite 257
Rock Hill, SC 29730

Phone (803) 909-9377
Fax (803) 728-6718