Advance directives can grant solace to you and your loved ones. Medical technology has advanced such that doctors can keep the body functioning longer than the brain. But some of us may not want our bodies to be sustained longer than we are able to think consciously and communicate meaningfully with others. North Carolina, under N.C.G.S. § 90-320, recognizes a right to direct medical care at the end of one’s life. In case you are too sick to make these decisions on your own, North Carolina provides for advance directives to give you some control over end-of-life medical decisions (i.e., whether and when to withdraw or withhold life-prolonging treatment such as ventilators or artificial nutrition and hydration).
There are three situations in which your doctors may conclude that you unable to make your own medical decisions regarding your end-of-life care: (1) your condition is incurable or irreversible and the expectation of death is imminent (typically within six to twelve months); (2) you become unconscious and to a high degree of medical certainty will not become conscious again; or (3) you suffer from advanced dementia or another condition that significantly impairs cognitive functioning, which is irreversible to a high degree of medical certainty. In these situations, decisions about your end-of-life care will be governed by advance directives, if you have them, or by the N.C. surrogacy laws, if you do not.
Advance directives come in two flavors: the living will and the health care power of attorney. A living will, promulgated by N.C.G.S. § 90-321, allows you to document your wishes about your end-of-life care. A health care power of attorney (sample), on the other hand, grants another person of your choice the authority to make any and all medical decisions on your behalf. While there is some overlap, these two advance directives are meant to be used concurrently.
In the absence of advance directives, N.C. surrogacy laws govern end-of-life. N.C.G.S. § 90-322 provides that the following people, in this respective order, are granted the authority to make these decisions: (1) a legally appointed guardian, (2) a health care agent, (3) an attorney in fact, (4) a spouse, (5) a majority of your reasonably available parents and adult children, (6) a majority of your reasonably available adult siblings, and finally, (7) an adult friend. If none are available, your doctor alone may make the decision. But remember that if you do not fall into one of the three categories of incompetence listed above, regardless of whether you have executed advance directives, you will make your own medical decisions.
Advance directives give you some control in deciding the course of your end-of-life care, grant whomever you choose the authority to make medical decisions on your behalf, and alleviate stress on your loved ones by documenting your wishes about end-of-life care. Without advance directives, these tremendously difficult decisions will be made by your loved ones in the order delineated above—whether or not you’d prefer that order. If you have strong feelings about your end-of-life care, who you want to make medical decisions on your behalf, or if you want to relieve some burden on your loved ones, consider speaking with your doctor and an attorney about executing advance directives.
--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation. Please contact him at (910) 772-1678.
--Robert C. Ennis is a second-year law student at the University of North Carolina School of Law and is a summer associate with Hodges & Coxe PC.