Advance Directives: The Inside Story
Bob Mason
Originally published in the Randolph Guide (6/17/2005)
The term “Advance Directives” is a general term covering both living wills and health care powers of attorney (also ‘do not resuscitate’ orders in a hospital – a topic for another article). In North Carolina, a living will is also known as a declaration of desire for a natural death (“DDND”). The terms are synonymous. A DDND is a legal document that declares your wishes regarding the use of life-sustaining treatment if you should become terminally ill. It may also be used to direct withholding of artificial hydration and nutrition if you should become terminally ill. Finally, a DDND can also apply if you are in a vegetative state over a sustained period of time. This is referred to as a “persistent vegetative state”.
North Carolina law defines persistent vegetative state to be a state in which one suffers from a sustained complete loss of self-aware cognition and, without the use of extraordinary means or artificial nutrition or hydration, will succumb to death.” The definition leaves a great deal to be desired.
Some medical studies have shown that shortly after the onset of a vegetative state, and for a period of time thereafter, a statistically significant chance of recovery remains. The chances for recovery fall off dramatically as the vegetative state persists. Thus the requirement that a vegetative state must be “persistent” before major medical interventions, hydration or nutrition may be withheld. The question then becomes: How long must a vegetative state persist before it can be said to be “persistent”? The North Carolina statutes answer by requiring the vegetative state to be “sustained”. Further, two doctors must certify that the vegetative state is not only “sustained” but that the patient will die without extraordinary medical measures or artificial hydration or nutrition. Such a certification should not be difficult, because anyone who can not feed himself or herself will die without artificial hydration and nutrition.
A living will authorizes doctors to follow your instructions contained in the document. In North Carolina, doctors may, but need not, follow the instructions in a living will, although there is some legal authority that health care providers could subject themselves to legal liability under a number of theories for failing to follow a living will, or for failing to withdraw from the case after securing alternate medical care. A living will cannot be revoked by anybody but you, and you can change it whenever you want.
A Heath Care Power of Attorney, on the other hand, is a document used to designate one or more persons to make health care decisions for you if you are unable to do so. If you do not have a health care power of attorney, North Carolina provides a hierarchy of persons who will be able to make those decisions for you. You may or may not agree with the statutorily given hierarchy (for example, one child may be more appropriate than another to make health care decisions for a parent).
If you do not have a Living Will (DDND), but you do have a Health Care Power of Attorney the agent named under the Health Care Power of Attorney may be able to make the same end-of-life decisions that you could have directed under a DDND. It depends upon how the Health Care Power of Attorney has been drafted or what options you have selected.
If you have both a Health Care Power of Attorney and a Living Will, the Living Will trumps the Health Care Power of Attorney. Many clients use a Health Care Power of Attorney to appoint others to make ongoing health care decisions for the client, but prefer to reserve end-of-life health care decisions to himself or herself through a Living Will (Parents or spouses may wish to spare a family member from having to make an emotionally difficult decision).
Advance Directives (Living Wills and Health Care Powers of Attorney) are simple forms that are readily available at hospitals and physicians’ offices. Nevertheless, the documents can be confusing and arguably the North Carolina statutory form of the DDND can present options that can easily create internal inconsistencies. Further, you should bear in mind that if you do not care for the narrow alternatives presented in the statutory form DDND, you may explore your preferences with an attorney qualified to draft an enforceable document for you. Free downloads of the statutory forms as well as more restrictive versions of both the DDND and the Health Care Power of Attorney are available at www.masonlawpllc.com (click on “Downloads”). Finally, you should also discuss your opinions (and the documents, if you have executed them) with your physician, and, perhaps especially, your clergy.
In any case, the worst possible thing you can do is nothing. In nearly every case that makes the news and involves the courts there is a patient who is likely in a vegetative state who did not execute any sort of advance directive. The Terri Schindler-Schiavo case in Florida is one sad example of what can happen by doing nothing. Do yourself and your loved ones a great favor. Thoroughly discuss your wishes with others and have the proper documents prepared.
Bob Mason is a Certified Elder Law Attorney and principal of Mason Law, PC in Asheboro
