A Living Will is a document used to tell a person’s treating physician they do not want to be kept alive artificially in the event they are permanently incapacitated; for example, they have no brain activity, are in a persistent vegetative state or a coma. A Living Will communicates medical decisions to physicians about life-prolonging measures. Life-prolonging measures are defined under North Carolina law as medical treatment meant to artificially prolong a person’s life by sustaining a vital function such as heartbeat or brain activity. A lot of people do not want to be kept alive if they do not feel they will have a certain quality of life or if they are a financial burden to their friends and family. Since people can find themselves in these situations with little to no warning, the law has provided a way for people to make their wishes clear in advance. The term Living Will is another term for what the law calls a declaration for a desire for a natural death.
NCGS Chapter 90 Article 23 is not a law that authorizes assisted suicide, rather it clarifies that people have a right to die naturally and can communicate that decision before some life-altering event prevents them from doing so. It also states that doctors relying on a Living Will are not committing a crime or professional malpractice by abiding by the instructions in the Living Will. Because of that, it is very important to understand what situations the statute covers. A Living Will in North Carolina can be effective in the following situations:
- The person has an incurable or irreversible condition that will result in their death within a relatively short period;
- They become unconscious and, to a high degree of medical certainty, will never regain consciousness; or
- The person suffers 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.
As a result, the person creating the Living Will, the Declarant, needs to make sure that what they specify in their Living Will, at least falls within these categories.
A valid Living Will must be executed in front of two witnesses and a notary. There are restrictions on who can be a witness to a Living Will. Doctors have a right to decline to abide by instructions to withhold life-prolonging treatment so it must be clear whether you are expressing a preference of giving instructions to your physician. A Living Will can specify whether you want specific types of life-prolonging treatment such as artificial hydration and/or nutrition or antibiotics. It is also crucial that if you have executed a health care power of attorney that you specify whether it controls over the current Living Will. One great way to frustrate your plan to create documents that can be read to conflict with each other. An Estate Planning directive like a Living Will needs to be clear-cut and precise.
Estate Planning is an area of life in which the old saying, “An ounce of prevention is worth a pound of cure”, is particularly true. Contact the Humphries Law Firm to schedule an appointment to discuss your Estate Planning needs.