Thom Goolsby on Living Wills and Health Care Powers of Attorney

Living Wills and Health Care Powers Of Attorney

To many people, the fear of a lingering death is worse than the fear of dying. Yet often near the end of one's life, one is unable to make decisions or express desires concerning medical care to loved ones or medical personnel. A living will and a health care power of attorney are legal documents which will permit you to make certain choices regarding your future health care and will allow you to appoint another individual to make those decisions for you in the event that you are unable to make them for yourself.

What is a Living Will?

A living will is a document which allows you to retain control over whether your life will be prolonged by certain medical procedures if you are diagnosed as being terminally and incurably ill or in a persistent vegetative state ( i.e. , a sustained complete loss of self-awareness). InNorth Carolina, this is called "A Declaration of A Desire for a Natural Death."

A living will allows you to authorize the withholding of extraordinary means of keeping you alive (for example, respirator care) and may authorize the withholding or discontinuance of artificial nutrition or hydration. You may make different choices as to the level of care to be withheld or discontinued depending upon whether your medical condition is terminal and incurable or you are in a persistent vegetative state.

What is a Health Care Power of Attorney?

A health care power of attorney is a document by which you may appoint another person who may consent to or refuse medical care, including mental health treatment, on your behalf if a physician or eligible psychologist determines that you are unable to make or communicate these decisions yourself.

You may authorize the designated person (the "health care agent") to consent to the withholding or withdrawal of life-sustaining procedures in the event you are determined to be: (1) terminally ill, (2) permanently in a coma, (3) suffering from severe dementia, or (4) in a persistent vegetative state. Life-sustaining procedures are those which only serve to artificially prolong the dying process and may include mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and any other medical treatment (other than care to provide comfort or alleviate pain). In addition to making decisions in "life and death" situations, your health care agent also may be authorized to make more routine medical decisions for you (for example, to consent to X-rays or surgery).

You may include instructions to your health care agent to refuse any specific types of treatment that are unacceptable to you for religious or other reasons. In the event of death, you may authorize your health care agent to donate your organs and authorize an autopsy.

A health care power of attorney will not be effective if a court appoints a guardian to act on your behalf. However, you may indicate in the document your choice of a guardian in the event guardianship proceedings are commenced.

How Should a Living Will or Health Care Power of Attorney Be Made?

The forms used to make a living will or health care power of attorney may be obtained from an attorney. A health care power of attorney may be a separate document or may be included in a broader durable power of attorney document addressing other matters than consent for and refusal of medical care. A living will and a health care power of attorney must be witnessed and signed in accordance with North Carolina law and must be certified by a notary public. At least two witnesses are required for a living will and a health care power of attorney. Witnesses cannot be related to the person signing the documents or be potential heirs to the person's estate. Nor may an attending physician or employees of the physician or health care institution be witnesses for these documents; however, such employees may notarize the document. Because they are not employees of the physician or health care institution, volunteers may witness the execution of a living will or health care power of attorney. Witnesses can have no claim against the individual.
You should carefully consider the implications of executing these documents, both as to the course of your future medical care and as to the effect of your decisions on your loved ones. It is strongly suggested that you consult with family members prior to executing these documents.

If I Do Not Have a Living Will or Health Care Power of Attorney, Who Will Make These Decisions for Me?

If an individual does not have a living will or health care power of attorney, the decisions will be made by the patient's spouse or next of kin, unless a court has appointed a guardian. Under the provisions of North Carolina statutes, such individuals may consent to withdrawal of medical care for patients who are terminally and incurably ill or in a persistent vegetative state after confirmation of this condition by physicians.