Understanding North Carolina’s Advance Healthcare Directives

If you want to ensure your wishes are followed in case you become incapacitated, there are specific legal documents you should consider having in North Carolina. These documents allow you to specify your preferences for medical treatment and to appoint someone to make decisions on your behalf. 

To craft these documents properly, it’s important to understand the purpose of each one and to have a Wilmington estate planning attorney on your side to help ensure they are created and executed properly.

Health Care Power of Attorney

A Health Care Power of Attorney (HCPOA) is a legal document that allows you to appoint someone else, referred to as your “agent” or “attorney-in-fact,” to make health care decisions on your behalf if you become incapacitated and are unable to make these decisions yourself.

Here are some key details you should know about a Health Care Power of Attorney:

  • Designated Agent: The person you appoint will have the authority to make medical decisions for you. This person could be a family member, a trusted friend, or anyone else you feel would respect your wishes. It’s crucial to discuss your healthcare wishes and values with this person to ensure they can make decisions that align with your preferences.
  • Scope of Authority: You can define the scope of decision-making authority your agent will have. This could range from general powers to make any and all healthcare decisions to more specific limitations. You could also state your wishes for specific treatments or procedures.
  • When It’s Placed In Effect: Generally, a HCPOA becomes effective when your physician determines that you lack the ability to make or communicate your own healthcare decisions.
  • Designate Alternative Agents: It’s a good idea to designate alternative agents in case your first choice is unable or unwilling to act on your behalf when the time comes.
  • End of Life Decisions: A HCPOA often includes directions about end-of-life care. These instructions can guide your agent and medical personnel to follow your preferences about treatments like resuscitation, mechanical ventilation, artificial nutrition and hydration, and pain management.
  • Revoking or Changing the HCPOA: As long as you’re mentally competent, you can change or revoke your HCPOA at any time. Changes or revocations should be communicated clearly to your healthcare provider and anyone else who has a copy of the HCPOA.

Your attorney can also help you consider all the situations you might need to address in your HCPOA. After the HCPOA is created, you should provide copies to your primary care physician, your appointed agent, and your hospital or care facility if one is relevant.

Living Will

A Living Will is a legal document that provides guidance about your desired medical care in situations where you become seriously ill or incapacitated and are unable to express your own decisions. It lets you declare your wishes about life-sustaining treatment, comfort care, and end-of-life care.

A living will can help you with the following items:

  • Expressing Medical Wishes: A Living Will allows you to provide specific instructions regarding medical treatment in various situations. This could include your wishes regarding resuscitation, mechanical ventilation, artificial nutrition and hydration, pain management, and other life-prolonging procedures.
  • End-of-Life Decisions: These documents often come into play in end-of-life situations or if you’re permanently unconscious. This allows you to make clear your preferences for care in situations where the decision could extend life in a state of severe quality compromise, or allow natural death to occur.
  • When It Becomes Effective: A Living Will becomes effective when you’re incapacitated and unable to make your own medical decisions, and the specific conditions outlined in the document are met, such as terminal illness or permanent unconsciousness.
  • Complementing a Health Care Power of Attorney: A Living Will often complements a Health Care Power of Attorney, where the Living Will outlines your wishes, and the Health Care Power of Attorney appoints a specific person to make healthcare decisions on your behalf. These two documents together can provide a comprehensive plan for your medical care when you’re unable to make decisions yourself.
  • Revocation and Changes: As long as you’re mentally competent, you can revoke or change a Living Will at any time. Any changes or revocations should be communicated clearly to your health care provider and anyone else who has a copy of your Living Will.

After the document is created, it’s important to keep it accessible and ensure your family, healthcare agent, and physicians know about it and understand your wishes.

Declaration of Desire for a Natural Death (“MOST” form)

The “MOST” form, which stands for “Medical Orders for Scope of Treatment,” is a physician order form in North Carolina that indicates which types of life-prolonging measures a patient wishes to have in case of a medical emergency. The form is often used for patients who are seriously ill or at the end of life.

Also known as the “Desire for a Natural Death” form, it allows patients to state their wishes for emergency medical treatment, including cardiopulmonary resuscitation, artificial ventilation, tube feeding, and other life-prolonging interventions. This form is typically filled out with a physician or another healthcare provider to ensure the patient’s wishes are accurately documented and can be medically carried out.

Here are some key points to know about the “MOST” form:

  • Defines Scope of Treatment: The form outlines a variety of medical interventions and allows the patient to indicate their preferences. For example, the patient can indicate whether they would want cardiopulmonary resuscitation (CPR) in the event of cardiac or respiratory arrest.
  • It’s Respected Across Settings: Unlike some other documents, the “MOST” form is a medical order, so it’s respected in all healthcare settings, not just within a single hospital or healthcare system. This includes emergency medical services, hospitals, nursing homes, and home health/hospice settings.
  • Comfort Measures: The form also includes a section on comfort measures, allowing a patient to express their wishes regarding interventions meant to alleviate pain and suffering.
  • Patient or Representative Signature: The form must be signed by the patient or the patient’s legally authorized representative, along with the physician, to be valid.
  • Review and Updates: It’s suggested to review and update the “MOST” form regularly, and especially after any major health changes.

As with other healthcare decisions, it’s important to discuss your wishes and the implications of various decisions with your healthcare provider and estate planning attorney. This ensures that the “MOST” form reflects your informed wishes accurately. The form should be easily accessible, such as placed on your refrigerator or in another easily visible and known location, and a copy should be shared with your healthcare proxy or agent.

Durable Power of Attorney

Although typically used for financial decisions, a durable power of attorney could also potentially cover decisions related to health care or personal care if specified in the document. This document would allow the person you appoint to make decisions if you become incapacitated, not only about your finances but also other aspects of your life.

Contact Our Wilmington Estate Planning Team

Remember, it’s important to discuss your wishes with the individuals you appoint in these roles to ensure they are prepared and willing to carry out your directives.

Estate planning can be complicated, and you should have an experienced team on your side. David Anderson and his team can provide personalized guidance to help you navigate the complexities of wills, trusts, power of attorney, health care directives, and more.

Don’t leave the future to chance. Ensure your wishes are followed and your family is taken care of, no matter what happens. Act today for peace of mind tomorrow. Contact our Wilmington office today to schedule a consultation.

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