Estate
Planning, Administration & Wills
What
is a living will?
ANSWER: A living will is a document that gives you
control over whether your life will be prolonged by certain
medical procedures should you be unable to make those
decisions yourself. It
allows you to designate whether or not you wish to be kept
alive by the use of extraordinary means in the event that you
are diagnosed as terminally ill or you are in a permanent
coma.
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What happens if I don=t have any health care documents?
Who will make health care decisions for me?
ANSWER: If the patient is
comatose and there is no reasonable possibility that he will
return to a cognitive state or is mentally incapacitated and
1) it is determined by the attending physician that the
person’s present condition is terminal and incurable or
diagnosed as a persistent vegetative state;
and 2) there is confirmation of the person’s present
condition in writing by a physician other than the attending
physician; and 3)
a vital function of the person could be restored by
extraordinary means or a vital function of the person is being
sustained by extraordinary means;
or the life of the person could be or is being
sustained by artificial nutrition or hydration, then
extraordinary means or artificial nutrition/hydration may be
withheld or discontinued upon the direction and under the
supervision of the attending physician with the concurrence of
(i) a health care agent appointed pursuant to a health care
power of attorney, (ii) a guardian of the person,
(iii) the person’s spouse, or (iv) a majority of the
relatives to the first degree, in that order.
If none of these people are available to make the
decision, North Carolina law allows the withholding or
discontinuing of extraordinary means or artificial
nutrition/hydration at the discretion of the attending
physician.
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Who
should I choose as a health care proxy?
ANSWER: You may choose
anyone whom you trust to make decisions regarding your health,
if you are unable to make them yourself.
However, the person you choose must be at least 18
years old and can not be engaged in providing health care to
you in exchange for money.
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What if I don't know anyone
I really trust to supervise my medical care?
ANSWER: If you do not
appoint someone to make medical decisions for you, then
decisions regarding your health care treatment will be made by
certain persons, in the following order of priority: (1) your
guardian, (2) your spouse, (3) a majority of your relatives to
the first degree and (4) your attending physician.
The alternative is to name a health care proxy with
limited powers in a health care directive. By limiting the
proxy’s authority, you can ensure he/she only has authority
regarding certain types of health care decisions and not those
involving life and death.
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What
types of medical care should I consider when completing my
health care documents?
ANSWER: You should consider
what you would wish to happen if you were ever diagnosed with
a terminal or incurable disease, or were to become a victim to
a persistent vegetative state.
Consider whether you would want
extraordinary means and/or artificial nutrition and
hydration to keep you alive under any of those circumstances.
Extraordinary means is defined as any medical procedure
or intervention, which in the judgment of the attending
physician, would serve only to postpone artificially the
moment of death by sustaining, restoring, or supplanting a
vital function. Your
health care directive can also specify your wishes regarding
possible mental health care treatment.
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Can
I say whether I want pain medication, or food and water?
ANSWER: You can give full
power and authority to a health care agent to make decisions
for you, which you could make yourself if you had the capacity
to make and communicate health care decisions.
Authority can involve decisions regarding anatomical
rights, autopsies and disposition of remains.
The authority granted to the health care agent may
contain whichever restrictions the principal deems
appropriate. Therefore,
a health care proxy may instruct the physicians on whether you
would like artificial food and water as well as pain
medication, because if you were able to communicate yourself,
you could ask the physicians to withhold any of those items
from your treatment.
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Where
can I get a health care directive?
ANSWER: Chapter 90, Section
321 of the North Carolina General Statutes provides a sample
health care directive, which can be copied and used by anyone
in the state of North Carolina.
As long as the document is signed, proved, witnessed
and dated, any doctor in the state of North Carolina can rely
upon it, unless the patient revokes it during the time he is
undergoing care.
You may also draft your own health
care directive. As
long as it substantially complies with the example set forth
in the statutes and the requirements therein, doctors in this
state will honor it. Should
you move out of state, after drafting a personal health care
directive, please make certain that your directive complies
with the requirements set forth by that state, as they may be
different from those of North Carolina.
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When
does my health care directive take effect?
ANSWER: A
health care directive becomes effective when and if the
physician or physicians determine in writing that the
declarant lacks sufficient understanding or capacity to make
or communicate decisions relating to the health care of the
declarant and continues in effect during the incapacity of the
principal.
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How
can I be sure my health care documents are legal?
ANSWER: In North Carolina,
health care documents must be signed by their maker and
certified by a notary public.
In addition, at least two witnesses are needed for some
health care documents. These
witnesses generally must neither be related to the person
making the document nor be the attending physician or an
employee of the attending physician of the signor.
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Where
should I keep my health care documents once they have been
signed?
ANSWER: The Secretary of
State’s office maintains an Advance Health Care Directive
Registry, where doctors may search for and obtain your
personal care directive in the event it is needed. Therefore, you should file a copy with the Secretary of
State’s office. In
the event it is not filed with the Secretary of State’s
registry, it should be kept in a safe place with other
important papers, like a fire safe box kept in your home or a
safety deposit box. You
might also wish to keep a copy on file with your attorney.
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