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NC Living Will and Advance Health Care Directive – SetzerLaw
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The Living Will, also known as an Advance Health Care Directive, allows a person to record his or her wishes for what kinds of health care may or may not be administered in various situations. It is very important to remember that the Living Will only applies when the patient is unconscious, incapacitated, or otherwise unable to make his own health care decisions. If the patient is awake and able to think and communicate normally, his wishes will be determined directly instead of by resort to the Living Will.

The most common situations covered by Living Wills are as follows:

  1. Permanent Coma – the patient is in an unconscious state from which the attending physicians say he or she has no medical hope of awakening.

  2. Permanent Vegetative State – the patient has suffered brain damage that has caused permanent, irreversible loss of responsiveness to stimuli. The patient may appear to be conscious and yet be in a persistent vegetative state.

  3. Terminal Illness with Death Imminent – the patient suffers from a terminal illness and doctors expect the patient will die very soon.

For each of these different potential situations, the patient may set forth his or her wishes for medical treatment. Usually, the patient will decide whether he wants artificial nutrition and artificial hydration (commonly referred to as “feeding tubes”), and whether he wants doctors to use “extraordinary means” of prolonging his life (including various life support systems, CPR, etc.).

It is important to discuss potential treatment options with your doctor as well as with your attorney before making a final decision. Many clients start out saying, “Pull the plug,” not knowing the level of control they have over specific medical situations and specific treatment options. After becoming fully informed, some clients still choose to opt out of all of the above forms of treatment in all of the above situations, but many clients choose a plan that is more tailored to their own unique outlooks.

Clients also sometimes confuse a Living Will with a Do Not Resuscitate order (DNR). While there are similarities between the two, they are not the same, and one does not replace the other. A Living Will is a legal document created by the patient and contains the patient’s wishes for end-of-life medical treatment. A DNR is not created by the patient but by a doctor. A DNR does not reflect the patient’s preferences. Rather, a DNR is issued by a doctor based upon the doctor’s medical opinion that any attempt to resuscitate the patient will do more harm than good.

Most clients use a Living Will as a tool to prevent their families from having to make decisions about these end-of-life treatment options. Because the client has already made the decision, family members can be at peace knowing what the client wanted instead of having to guess and deal with the guilt and uncertainty of wondering whether they made the right decision.

Alternatively, some clients use a Living Will as a back-up plan rather than as a trump card. The law allows the patient to decide whether his agent under a Health Care Power of Attorney has the authority to override the Living Will and tell the doctors to take an alternative course of action. To the clients mentioned above, this arrangement would defeat the entire purpose of a Living Will. However, other clients prefer this arrangement.

One common reason a client might choose to give precedence to his agent under a Health Care Power of Attorney is that he trusts his agent (usually a spouse or other close family member) to make the decision whether or not to stop treatment. Some clients fear that their doctors might remove treatment too early, at a time when the family might still have hope that the client could recover.

Ultimately, it is up to the client to decide which arrangement best suits him. That is why it is so important to discuss these matters with both your physician and your estate planning attorney.

Your Living Will or Advance Health Care Directive should be widely distributed to your family members, close friends, and fiduciaries as well as to your doctors, clergymen, and local hospitals. You may also choose to register your Advance Health Care Directive with the North Carolina Secretary of State’s Online Registry for health care directives.

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