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.

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.

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.

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.

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.

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.

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.

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.

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.

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.