Feb182026
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If my parent is in hospice with no power of attorney or living will, who gets to make medical decisions if my parent can’t communicate? – North Carolina

Short Answer

In North Carolina, if a hospice patient cannot make or communicate health care decisions and there is no health care power of attorney or living will, the decision-maker depends on the type of decision and the patient’s situation. For decisions about withholding or stopping life-prolonging measures in certain end-of-life conditions, North Carolina law sets a priority list (guardian first, then spouse, then a majority of reasonably available adult children and parents, and so on). If the parent still has capacity, the parent remains the decision-maker and can still sign a health care power of attorney to name the person who will speak for them later.

Understanding the Problem

In North Carolina, when a parent is receiving hospice care and later cannot communicate, the practical question becomes: who has the legal authority to consent to treatment decisions, decline treatment, or guide end-of-life choices when no health care power of attorney or living will exists. The answer can turn on whether the parent has capacity at the time the decision must be made and whether the decision involves life-prolonging measures in an end-of-life condition. The question also often includes whether adult children can decide alone, or whether the law requires a group decision or a court process.

Apply the Law

North Carolina generally treats the patient as the decision-maker as long as the patient has capacity. If the patient lacks capacity and no written health care decision document is in place, North Carolina law provides a specific priority order for certain end-of-life decisions involving life-prolonging measures when the medical conditions and confirmations required by statute are met. If there is conflict, no one qualifies, or broader authority is needed, a guardianship case in the county clerk of superior court may be required.

Key Requirements

  • Lack of capacity at the time of the decision: The substitute decision-making question matters only when the parent cannot make or communicate health care decisions.
  • No valid decision-making document in place: If there is no health care power of attorney (and no other valid appointment of a health care agent), the law may default to a statutory priority list for certain end-of-life decisions.
  • Type of decision (especially life-prolonging measures): North Carolina’s clearest “who decides” hierarchy appears in the statute that addresses withholding or discontinuing life-prolonging measures when specific end-of-life conditions and physician confirmations exist.

What the Statutes Say

Analysis

Apply the Rule to the Facts: Here, the parent is widowed, in hospice in North Carolina, and has no health care power of attorney or living will, but is described as still having capacity. That means the parent remains the decision-maker right now and can still sign a health care power of attorney while capacity remains. If the parent later cannot communicate, and the decision involves withholding or stopping life-prolonging measures under the conditions described in N.C. Gen. Stat. § 90-322, the next decision-makers would generally be (in order) a court-appointed guardian (if one exists), then (because there is no spouse) a majority of the reasonably available adult children and parents, then a majority of reasonably available adult siblings, and then another individual with an established relationship who can reliably convey the parent’s wishes.

Process & Timing

  1. Who acts now: The parent (while capacity remains). Where: Typically with a North Carolina notary and witnesses as required for the chosen document, coordinated through the hospice team or a lawyer. What: A North Carolina Health Care Power of Attorney naming a health care agent (and usually alternates). When: As soon as possible while the parent can still understand and communicate choices.
  2. If the parent loses capacity without documents: The attending physician and care team will look for the legally appropriate surrogate. For end-of-life decisions about life-prolonging measures under N.C. Gen. Stat. § 90-322, the care team will typically confirm who is “reasonably available” and whether a majority of the appropriate group (for example, adult children and parents) agrees.
  3. If there is disagreement or no clear surrogate: A family member or other interested person may need to file a guardianship proceeding so a guardian of the person can be appointed to make health care decisions. In North Carolina, guardianship cases are handled through the Clerk of Superior Court in the county where the parent resides or is present.

Exceptions & Pitfalls

  • Assuming “next of kin” automatically controls everything: North Carolina’s clearest statutory priority list is tied to withholding or discontinuing life-prolonging measures in specific end-of-life conditions; other medical decisions can still create uncertainty without a signed health care power of attorney.
  • Majority rules can surprise families: When the statute calls for a “majority of reasonably available” adult children and parents (or siblings), one person may not have authority to act alone, and disagreement can stall decisions.
  • Waiting too long to sign documents: Hospice does not automatically mean incapacity, but capacity can change quickly. Delays can lead to emergency decision-making, conflict, or a guardianship filing.
  • Not documenting wishes clearly: Even when a surrogate is legally allowed to speak, the care team still needs reliable information about the parent’s values and goals of care. Lack of clarity can lead to family conflict and inconsistent guidance to providers.

Conclusion

In North Carolina, a hospice patient with capacity remains in charge of medical decisions and can still sign a health care power of attorney to name a decision-maker for later. If the patient cannot communicate and no documents exist, North Carolina law provides a priority order for certain end-of-life decisions about life-prolonging measures, starting with a court-appointed guardian and then moving to family members in a defined order, often requiring a majority agreement. The most important next step is to sign a health care power of attorney promptly while capacity remains.

Talk to a Estate Planning Attorney

If a parent is in hospice and there is no power of attorney or living will, our firm has experienced attorneys who can help clarify who can act now, what documents can still be signed while capacity remains, and what timelines matter if capacity changes. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Categories: Estate Planning Q&A Series, Probate Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.