Advance
Directives: Living Wills and
Health Care Powers of
Attorney
Living Wills
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 or permanently
unconscious. It may also be
used to direct withholding
of artificial hydration and
nutrition if you should
become terminally ill or
permanently unconscious.
A living will, in most
cases, only becomes
effective when you are in a
persistent vegetative state
or permanently unconscious
or terminally ill and unable
to communicate. Your
attending physician and one
other physician must agree
that you are either in a
terminable and incurable
state or in 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.”
A living will cannot be
revoked by anybody but you,
and you can change it
whenever you want.
A living will directs
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.
Any competent person
eighteen years of age or
older can make a living will
by signing it in front of
two or more witnesses who
also sign the document
attesting that the document
was signed in their
presence. These witnesses
must be at least eighteen
years old. The witnesses
should not be related to
you, they should not be
beneficiaries of your estate
or have financial
responsibilities for your
medical care, nor should
they be any of your health
care providers or their
employees.
Health Care Powers of
Attorney
A Heath Care Power of
Attorney 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 decision 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. Many people
choose to have a Health Care
Power of Attorney and not
have a DDND; this is
perfectly permissible. No
one can require you
to have a DDND or a Health
Care Power of Attorney.
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 themselves
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 online or 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. As
part of developing an
overall estate plan, you
should have an attorney
familiar with these issues
review this document with
you. You should also
discuss your opinions (and
the documents, if you have
executed them) with your
physician, clergy and,
perhaps especially.
You may download a DDND form
and a Health Care Power of
Attorney form under
“Download Forms”.
Nevertheless, it would be
wise of you to have a
knowledgeable person review
these forms.
