North Carolina’s Medical Directives, Part 1: Living Wills
As I’ve mentioned in a past blog post, a comprehensive estate plan consists of a number of documents beyond the will that disposes of the person’s assets. Several of these non-will documents deal with medical treatment, allowing individuals to express their health-care-related wishes in writing so that these wishes can be carried out once the person becomes incapacitated. In this blog post and next month’s blog post, I’ll discuss two of these medical directive documents in detail: the living will and the health care power of attorney. While these documents ask us to consider a rather unpleasant possibility (becoming incapacitated and needing medical decisions made for us), they offer us peace of mind by allowing us to retain a significant amount of control in the midst of unfortunate circumstances, having made our wishes clear in legal documents executed while we still had capacity.
A living will (also known as an “advance directive for a natural death”) tells doctors whether to withhold or withdraw “life-prolonging measures” (more commonly referred to as “life support”) from a person who is in an end-of-life scenario. If a patient is incapacitated, the doctors will follow the instructions given by the patient in the living will, either keeping the patient on life support or removing life support and allowing the patient to pass away naturally. If a person is reluctant to make a firm decision about whether they’d want to remain on life support, the living will can be drafted to allow the final decision regarding the prolonging of life to be made by a trusted individual designated in a health care power of attorney. Importantly, if the patient is not incapacitated and can communicate their own wishes, then the patient will still have the ability to make these important life-support-related decisions for him- or herself.
The term “life-prolonging measures” is defined in the North Carolina General Statutes. It includes medical procedures or interventions which, in the judgment of the attending physician, would only serve to postpone the moment of death by “sustaining, restoring, or supplanting a vital function.” As examples of life-prolonging measures, the law lists “mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and similar forms of treatment.” Measures taken to provide comfort or alleviate pain are excluded from the definition of life-prolonging measures, and so any person whose living will expresses a desire to have these life-prolonging measures removed or withheld will still receive care meant to keep them clean, comfortable, and free of pain to the extent possible.
Living wills were first discussed in the United States in the late 1960s, and California became the first state to recognize living wills in 1976. Since then, almost every state (including North Carolina) has passed a law recognizing living wills as binding expressions of a person’s wishes regarding life-prolonging measures. But it was over the course of the 1990s and early 2000s that many Americans became acutely aware of the importance of living wills thanks to the fifteen-year-long saga of a Florida woman named Terri Schiavo. Terri had fallen into a persistent vegetative state in 1990 at the age of 26. Because she did not have a living will in place, her family did not know whether Terri would have preferred to die a natural death or be kept alive using life-prolonging measures. Terri’s parents had one opinion on the matter, and Terri’s husband had another. Their inability to agree on a way forward resulted in years of litigation which wasn’t resolved until 2005, when a judge ordered the removal of Terri’s feeding tube. Terri’s situation – which played out very publicly and which involved intervention from the governor of her state, the U.S. Congress, the Supreme Court of the United States, and even the President – made all too clear just how dire the consequences of not having a living will can be.
While we may not want to think about ourselves in an end-of-life scenario, it’s clear that we can spare ourselves and our families a lot of heartache by clearly stating our wishes regarding life-prolonging measures in a living will. Through this document, we can have confidence that our wishes will be followed, and we can retain some measure of control even in scary and uncertain times. If you would like to learn more about living wills and the other documents that make up a comprehensive estate plan, please get in touch to schedule a free consultation.
The information contained in this blog post is intended only as general legal information and should not be construed as formal legal advice on any matter, nor should its presentation be construed as intent on the part of The Law Office of Ryan A. Layton, PLLC to form an attorney-client relationship with any user of this website. For more information, please see this disclaimer.