ADVANCE DIRECTIVES

YOUR RIGHT TO MAKE HEALTH CARE DECISIONS
UNDER THE LAW IN NORTH CAROLINA

INTRODUCTION

North Carolina and federal law give every competent adult, 18 years or older, the right to make their own health care decisions, including the right to decide what medical care or treatment to accept, reject or discontinue. If you do not want to receive certain types of treatment or you wish to name someone to make health care decisions for you, you have the right to make these desires known to your doctor, hospital or other health care providers, and in general, have these rights respected. You also have the right to be told about the nature of your illness in terms that you can understand, the general nature of the proposed treatments, the risks of failing to undergo these treatments and any alternative treatments or procedures that may be available to you.

However, there may be times when you cannot make your wishes known to your doctor or other health care providers. For example, if you were taken to a hospital in a coma, would you want the hospital's medical staff to know what your specific wishes are about the medical care that you want or do not want to receive.

This page describes what North Carolina and federal law have to say about your rights to inform your health care providers about medical care and treatment you want, or do not want, and about your right to select another person to make these decisions for you, if you are physically or mentally unable to make them yourself.

To make these difficult issues easier to understand, we have presented the information in the form of questions and answers. Because this is an important matter, we urge you to talk to your spouse, family, close friends, personal advisor, your doctor and your attorney before deciding whether or not you want an advance directive.

Advance directives are documents which state your choices about medical treatment or name someone to make decisions about your medical treatment, if you are unable to make these decisions or choices yourself. They are called "advance" directives because they are signed in advance to let your doctor and other health care providers know your wishes concerning medical treatment. Through advance directives, you can make legally valid decisions about your future medical care.

North Carolina law recognizes 3 types of advance directives:

1) A Declaration (Living Will). 2) A Health Care Power of Attorney. 3) An Advance Instruction for Mental Health Treatment.

No, it is entirely up to you whether you want to prepare any documents. But if questions arise about the kind of medical treatment that you want or do not want, advance directives may help to solve these important issues. Your doctor or any health care provider cannot require you to have an advance directive in order to receive care; nor can they prohibit you from having an advance directive. Moreover, under North Carolina law, no health care provider or insurer can charge a different fee or rate depending on whether or not you have executed an advance directive.

If you cannot speak for yourself and have not made an advance directive, your doctor or other health care providers will generally look to your family or friends for decisions about your care. But if your doctor or your health care facility is unsure or if your family members cannot agree, they may have to ask the court to appoint a person (called a guardian) to make those decisions for you.

Your doctor must inform you about your medical condition and what different treatments can do for you. Many treatments have serious side effects. Your doctor must give you information, in language that you can understand, about serious problems that medical treatment is likely to cause. Often, more than one treatment might help you and different people might have different ideas on which is best. Your doctor can tell you the treatments that are available to you, but he cannot choose for you. That choice depends on what is important to you.

Before writing down your instructions, you should talk to those people closest to you and who are concerned about your care and feelings. Discuss them with your family, your doctor, friends and other appropriate people, such as a member of your clergy or your lawyer. These are the people who will be involved with your health care if you are unable to make your own decisions.

It is important to remember that these directives only take effect when you can no longer make your own health care decisions. As long as you are able to give "informed consent," your health care providers will rely on YOU and NOT on your advance directives.

Informed consent means that you are able to understand the nature, extent and probable consequences of proposed medical treatments and you are able to make rational evaluations of the risks and benefits of those treatments as compared with the risks and benefits of alternate procedures AND you are able to communicate that understanding in any way.

All hospitals, nursing homes, home health agencies, HMOs and all other health care facilities that accept federal funds must ask if you have an advance directive, and if so, they must see that it is made part of your medical records.

Generally, yes, if they comply with North Carolina law. Federal law requires your health care providers to give you their written policies concerning advance directives. A summary statement of those policies is provided for you at the back of this book. It may happen that your doctor or other health care provider cannot or will not follow your advance directives for moral, religious or professional reasons, even though they comply with North Carolina law. If this happens, they must immediately tell you. Then they must also help you transfer to another doctor or facility that will do what you want.

Yes, at any time, you can cancel or change any advance directive that you have written. To cancel your directive, simply destroy the original document and tell your family, friends, doctor and anyone else who has copies that you have cancelled them. To change your advance directives, simply write and date a new one. Again, give copies of your revised documents to all the appropriate parties, including your doctor.

A lawyer may be helpful and you might choose to discuss these matters with him, but there is no legal requirement in North Carolina to do so. You may use the forms that are provided in this booklet to execute your advance directives.

The laws on advance directives differ from state to state, so it is unclear whether a North Carolina advance directive will be valid in another state. Because an advance directive is a clear expression of your wishes about medical care, it will influence that care no matter where you are admitted. However, if you plan to spend a great deal of time in another state, you might want to consider signing an advance directive that meets all the legal requirements of that state.

An advance directive executed in another state may not meet all the requirements of North Carolina law. To make sure you have a legal advance directive, you should execute North Carolina forms or have your attorney review the advance directive from the other state.

You should keep them in a safe place where your family members can get to them. Do NOT keep the original copies in your safe deposit box. Give copies of these documents to as many of the following people as you are comfortable with: your spouse and other family members; your doctor; your lawyer; your clergy person; and any local hospital or nursing home where you may be residing. Another idea is to keep a small wallet card in your purse or wallet which states that you have an advance directive and who should be contacted.

A living will is a document which tells your doctor or other health care providers whether or not you want life-sustaining treatments or procedures administered to you if you are in a terminal and incurable condition or a persistent vegetative state. It is called a "living will" because it takes effect while you are still living.

No. Wills and living trusts are financial documents which allow you to plan for the distribution of your financial assets and property after your death. A living will only deals with medical issues while you are still living. Wills and living trusts are complex legal documents and you usually need legal advice to execute them. You do not need a lawyer to complete your North Carolina living will.

A North Carolina living will goes into effect when: 1) your doctor has a copy of it, and 2) your doctor has decided that you are no longer able to make your own health care decisions, and 3) your doctor and another doctor have determined that you are in a terminal and incurable condition or a persistent vegetative state.

These are treatments or procedures that are not expected to cure your terminal condition or make you better. They only prolong dying. Examples are mechanical respirators which help you breathe, kidney dialysis which clears your body of wastes and cardiopulmonary resuscitation (CPR) which restores your heartbeat.

A terminal and incurable condition is defined as a condition for which the administration of medical treatment will only prolong the dying process and without administration of these treatments or procedures, death will occur in a relatively short period of time.

A persistent vegetative state means that a patient is in a permanent coma or state of unconsciousness caused by illness, injury or disease. The patient is totally unaware of himself, his surroundings and environment and to a reasonable degree of medical certainty, there can be no recovery.

No. A North Carolina living will covers almost all types of life-sustaining treatments and procedures. A "Do Not Resuscitate" order covers two types of life-threatening situations. A DNR order is a document prepared by your doctor at your direction and placed in your medical records. It states that if you suffer cardiac arrest (your heart stops beating) or respiratory arrest (you stop breathing), your health care providers are not to try to revive you by any means.

Unless you state otherwise in the living will, medication for pain will be provided where appropriate to make you comfortable and will not be discontinued.

Can my doctor be sued or prosecuted for carrying out the provisions of

No. The North Carolina Right to a Natural Death Act specifically states that the withholding or discontinuance of any extraordinary means of keeping a patient alive, or the withholding or discontinuance of artificial nutrition and hydration shall not be considered the cause of death for any civil or criminal purpose, nor shall it be considered unprofessional conduct.

No. The making of a living will, in accordance with North Carolina law, will not affect the sale or issuance of any life insurance policy, nor shall it invalidate or change the terms of any insurance policy. In addition, the removal of life-support systems according to North Carolina law, shall not, for any purpose, constitute suicide, homicide or euthanasia, nor shall it be deemed the cause of death for the purposes of insurance coverage.

Yes, you must sign (or have someone sign the document in your presence and at your direction, if you are unable to sign) and date the living will. Then it must be witnessed by 2 qualified adults and either be notarized or be certified by a clerk or assistant clerk of a Superior Court in North Carolina.

The only people who CANNOT witness your signature are: 1) Anyone related to you or your spouse within the third degree (grandparents, parents, children or grandchildren); 2) Anyone who is entitled to any portion of your estate; 3) Your attending physician or an employee of your attending physician; 4) An employee of

a health care facility, nursing home, or group-care home in which you are a patient or residing; or 5) Any person who has any claim against you.

HEALTH CARE POWER OF ATTORNEY

A HCPA is a legal document which allows you (the "principal") to appoint another individual (the "attorney-in-fact" or "agent") to make medical and/or mental health decisions for you if you should become temporarily or permanently unable to make those decisions yourself. The person you choose as your attorney-in-fact does not have to be a lawyer.

You can appoint almost any adult to be your agent. You should select a person(s) knowledgeable about your wishes, values, religious beliefs, in whom you have trust and confidence and who knows how you feel about health care. You should discuss the matter with the person(s) you have chosen and make sure that they understand and agree to accept the responsibility.

You can select a member of your family, such as your spouse, child, brother or sister, or a close friend. If you select your spouse and the marriage is dissolved or annulled, the appointment of your spouse as your agent is revoked.

The only person who CANNOT be appointed as your agent is any person who is providing you with health care and whom you are paying for that health care.

The HCPA only becomes effective when you are temporarily or permanently unable to make your own health care decisions and your agent consents to start making those decisions. Your agent will begin making decisions after your doctors have decided that you are no longer able to make them. Remember, as long as you are able to make treatment decisions, you have the right to do so.

Unless you limit his/her authority in the HCPA, your agent will be able to make almost every treatment decision in accordance with accepted medical practice that you could make, if you were able to do so. If your wishes are not known or cannot be determined, your agent has the duty to act in your best interest in the performance of his/her duties. These decisions can include authorizing, refusing or withdrawing treatment, even if it means that you will die. As you can see, the appointment of an agent is a very serious decision on your part.

Yes. While you are not required to do so, you may designate alternates who may also act for you, if your primary agent is unavailable, unable or unwilling to act. Your alternates have the same decision-making powers as the primary agent.

You should appoint only ONE person to be your primary agent. Any others that you want to be involved with your health care decisions should be appointed as your alternates. If two or more people are given equal authority and they disagree on a health care decision, one of the most important purposes of the HCPA--to clearly identify who has the authority to speak for you--will be defeated. If you are afraid of offending people close to you by choosing one over another to be your agent, ask them to decide among themselves who will be your primary agent and select the others as alternates.

No. Your health care agent or your alternate agents cannot be held liable for treatment decisions made in good faith on your behalf. Also, he or she cannot be held liable for costs incurred for your care just because he or she is your agent.

Yes. Your agent and your alternates can resign at any time by giving written notice to you, your doctor or the hospital or nursing home where you are receiving care.

Yes, you must sign (or have someone sign the document in your presence and at your direction, if you are unable to sign) and date the document. Then it must be witnessed by 2 qualified adults and notarized.

The only people who CAN NOT witness your signature are: 1) Any person who is related to you or your spouse by blood or marriage within the third degree (grandparents, parents, children or grandchildren); 2) Any person who is entitled to any portion of your estate; 3) Your attending physician or your mental health treatment provider; 4) An employee of your attending physician or mental health treatment provider; 5) An employee of a health care facility, nursing home or group-care home in which you are a patient or residing; or 6) Any person who has a claim against any portion of your estate.

    A living will only applies if you are terminally ill or if you are in a persistent vegetative state and unless you write in other specific instructions, it only tells your doctor what you do NOT want.
    The HCPA allows you to appoint someone to make health care decisions for you if you cannot make them. It covers all health care situations in which you are incapable of making decisions for yourself. It also allows you to give specific instructions to your agent about the type of care you want to receive.
    The HCPA allows your agent to respond to medical situations that you might not have anticipated and to make decisions for you with knowledge of your values and wishes.
    Since the HCPA is more flexible, it is the advance directive most people choose. Some people, however, do not have someone whom they trust or who knows their values and preferences. These people should consider creating a living will.