A living will, or declaration of right to a natural death, can be an essential part of your estate plan in the event that you face an unexpected illness or injury that leaves you incapacitated, mentally incompetent, or unable to communicate. There is no doubt that thinking about end of life decisions and situations is incredibly difficult. Yet, ignoring these decisions and situations can place a heavy burden on your loved ones who will ultimately have to make these decisions for you without knowing what your wishes truly are. This often creates disagreement among your family members, which may last well beyond your passing. However, an appropriate estate plan that includes a living will may be the solution to ensure your wishes are carried out and that your family is protected.
What is a Living Will in North Carolina?
A living will is often confused with a last will and testament, another important aspect of any estate plan, which distributes your assets according to your wishes upon your death. Unlike a last will and testament, a living will is a document that details your wishes on how decisions will be made about your medical care during your lifetime at times when you are unable to speak for yourself. The medical care decisions most often addressed in a person’s living will consider whether certain life-prolonging measures will be discontinued or withheld, such as mechanical ventilation, dialysis, antibiotics, and artificial nutrition and hydration.
What are the Requirements for a North Carolina Living Will to Go Into Effect?
Per North Carolina General Statute 90-321, when you execute a living will the life-prolonging measures you identify will be withheld or discontinued according to your wishes if:
- Your living will expresses a desire that life-prolonging measures not be used to prolong your life where:
- You have an incurable or irreversible condition that will result in your death within a relatively short period of time; or
- You become unconscious and, to a high degree of medical certainty, will never regain consciousness; or
- You suffer from advanced dementia or any other condition resulting in the substantial loss of cognitive ability and that loss, to a high degree of medical certainty, is not reversible.
- It is determined by the attending physician that you have a medical condition described above that is specified in your living will for applying your directives, and a physician other than the attending physician confirms the presence of such condition.
- Your living will states that you are aware that your living will authorizes a physician to withhold or discontinue the life-prolonging measures you specify,
- You signed your living will in the presence of two witnesses who believe you to be of sound mind and who (1) are not related to you or your spouse within the third degree, (2) does not have reasonable expectation that he or she would be entitled to any portion your estate upon your death under any existing will, codicil, or the Intestate Succession Act, (3) is not your attending physician, a licensed health care provider who is a paid employee of your attending physician, or a paid employee of a health care facility or nursing home in which your are a patient, and (4) does not have a claim against any portion of your estate at the time of your execution of the living will.
- Your living will has been proved before a clerk, assistant clerk of superior court, or a notary public.
Once executed, your living will can still be revoked, or terminated, in North Carolina in several different ways. First, you may revoke your living will in writing, or in any other manner by which you clearly communicate your intent to revoke your living will. Second, your health care agent may revoke your living will if such power of revocation is explicitly granted to him or her in either (1) your health care power of attorney, or (2) within your living will.
Who Determines if I Receive Life-Prolonging Medical Treatment if I Don’t Have a Living Will in North Carolina?
As mentioned at the beginning of this article, if you do not have a living will in place and you encounter an unexpected illness or injury that leaves you lacking capacity to make or communicate your wishes regarding medical treatment, others are going to be forced to make those decisions for you, and possibly in a manner that is inconsistent with your wishes.
More specifically, as is often the case, a person facing an incapacitating illness or injury may be capable of having one or more vital bodily functions restored or sustained by life-prolonging measures. However, if a physician determines that the condition is incurable and will result in the person’s death within a relatively short period of time or that the person is unconscious and will never regain consciousness, then if the person does not have a living will such life-prolonging measures will be withheld or discontinued at the direction of the attending physician and with the agreement of the following persons, and in the order indicated:
- A guardian of the patient's person appointed by a court unless the patient has a valid health care power of attorney, then the health care agent shall have the right to exercise the authority to the extent granted.
- A health care agent appointed pursuant to a valid health care power of attorney.
- An agent, with powers to make health care decisions for the patient, appointed by the patient pursuant durable power of attorney.
- The patient's spouse.
- A majority of the patient's reasonably available parents and children who are at least 18 years of age.
- A majority of the patient's reasonably available siblings who are at least 18 years of age.
- An individual who has an established relationship with the patient, who is acting in good faith on behalf of the patient, and who can reliably convey the patient's wishes.
If none of the above is reasonably available then life-prolonging measures may be withheld or discontinued at the discretion of the attending physician.
Are You Looking for an Estate Planning Lawyer in Charlotte, NC?
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