North Carolina Living Will Requirements

North Carolina's declaration is governed entirely by Chapter 90, Article 23, a statute separate from the state's health care power of attorney statute. Using the state's own optional statutory form is not mandatory; any signed, witnessed, and proved document meeting Section 90-321(c)'s requirements is legally sufficient, including earlier versions of the statutory form.

North Carolina's declaration lets you initial this condition alongside, not instead of, the other two trigger conditions: an incurable or irreversible condition that will result in your death within a relatively short period of time.

The statute's own term is unconsciousness from which your health care providers determine, to a high degree of medical certainty, that you will never regain consciousness.

Subsection (c) names advanced dementia or any other condition resulting in substantial, irreversible loss of cognitive ability as its own enumerated trigger condition, confirmed to a high degree of medical certainty by your health care providers.

North Carolina's statutory form structures artificial nutrition and hydration as a separate, four-way initialed exception on top of your general instruction, not folded into it automatically: you may elect to still receive both hydration and nutrition, hydration only, or nutrition only, despite an otherwise general withhold instruction. Life-prolonging measures already include artificial nutrition and hydration by default under North Carolina General Statutes Section 32A-16(4).

North Carolina's statutory form includes a dedicated paragraph directing that health care providers take reasonable steps to keep you clean, comfortable, and free of pain, even if that care may hasten your death.

Two witnesses are required, and each must not be related to you within the third degree, must not know or reasonably expect to inherit from you, must not be your attending physician or a paid employee of your physician, your health facility, or the nursing home or adult care home where you live, and must not have a claim against your estate. Witnesses alone do not make the declaration valid; notary or clerk proof is required in addition, not instead.

In addition to two witnesses, your declaration must be proved before a notary public, or a clerk or assistant clerk of superior court. Unlike the witness rule, North Carolina does not disqualify a notary for being a paid employee of your attending physician, health facility, or care home. This proof step does not substitute for witnesses; both are required.

You may revoke your declaration at any time, in writing or in any manner that clearly and consistently communicates your intent to revoke, regardless of your mental or physical condition. The statute does not itself require notifying your physician for the revocation to take effect, unlike the separate health care power of attorney, whose revocation only becomes effective once you communicate it to your agent and your attending physician.

Withholding or discontinuing life-prolonging measures in accordance with a validly executed declaration is not considered the cause of death for civil or criminal purposes, and is not considered unprofessional conduct or a lack of professional competence.

Federal law requires Medicare- and Medicaid-participating hospitals, nursing homes, and other facilities to inform patients in writing of their right under North Carolina law to make a declaration or other advance directive stating their own treatment wishes.

Federal HIPAA regulations govern how a health care agent can be authorized to access your protected health information. Because North Carolina keeps the declaration and the health care power of attorney as separate documents, this authorization is primarily relevant if you have also executed a health care power of attorney naming an agent; it does not expand what your declaration alone covers.

North Carolina's declaration form itself contains no organ-donation section; organ and tissue donation wishes are handled through the separate Anatomical Gift Act and, if you execute one, through the organ-donation section of the North Carolina Health Care Power of Attorney form.

A declaration or similar document validly executed in another jurisdiction is valid in North Carolina if it complies with either that jurisdiction's requirements or North Carolina's.

North Carolina requires the attending physician to determine that your present condition matches what you initialed on your declaration, AND requires that determination to be independently confirmed by a second physician who is not the attending physician, before any measures are withheld or discontinued. This second-opinion safeguard applies regardless of which trigger condition is involved.

The health care power of attorney statute is intended to be consistent with the declaration statute, and the declaration statute controls if the two ever conflict. Separately, the declaration's own statutory form lets you specify in advance whether the declaration overrides your health care agent's contrary instructions about prolonging your life, or the reverse.

An attending physician may decline to honor a declaration on conscience grounds, or the conscience-based policy of the treating facility, but must not interfere with and must cooperate reasonably in transferring you to a physician or facility willing to honor it.

North Carolina's optional statutory form is set out in subsection (d1). Subsection (i) confirms using it is optional and nonexclusive; other forms of a declaration, including earlier statutory forms, remain valid if they independently meet the signing, witness, and proof requirements. Subsection (j) additionally allows combining this form with a health care power of attorney form, provided the combined document is signed, witnessed, and proved under this section's rules.

Federal regulations implementing the Patient Self-Determination Act require Medicare- and Medicaid-participating providers to maintain written policies on advance directives, including declarations executed under North Carolina law.

North Carolina's declaration statute expressly permits, though does not require, combining the declaration with a health care power of attorney form into one signed document. If combined, the resulting document must be signed, witnessed, and proved under the declaration statute's rules (Section 90-321), not the health care power of attorney statute's rules.