North Carolina Living Will Requirements

Introduction

Key Things to Know

1. 1

   North Carolina's declaration doesn't ask you to pick one trigger condition. You may initial any or all of three: an incurable or irreversible condition expected to cause death within a relatively short time, unconsciousness your providers determine you won't recover from, or advanced dementia causing substantial, irreversible loss of cognitive ability. This document is commonly called a living will; North Carolina's own statute calls it a declaration.

2. 2

   A living will is not a last will and testament. Your North Carolina declaration governs medical treatment while you're alive but unable to communicate; a last will and testament governs who inherits your property after you die.

3. 3

   North Carolina does not combine your declaration and your health care power of attorney into one instrument. They're governed by separate statutes, Chapter 90 Article 23 and Chapter 32A Article 3, though the law lets you voluntarily merge them into one signed document if you want.

4. 4

   Execution takes two steps together, not one or the other: signing in front of two qualifying witnesses, and having the document proved before a notary public or a clerk or assistant clerk of superior court. Skipping either step leaves the declaration invalid.

5. 5

   Before your declaration actually takes effect, your attending physician must determine your condition matches what you initialed, and a second, independent physician must confirm it. This second-opinion requirement applies every time, regardless of which condition you initialed.

6. 6

   Your general treatment-wishes instruction already covers artificial nutrition and hydration by default. Getting it continued anyway requires a separate initialed exception on the form, in one of three configurations: both, hydration only, or nutrition only.

7. 7

   Your written declaration controls on its own terms, before any agent even enters the picture: North Carolina's form lets you initial, in advance, whether this declaration overrides a health care agent's contrary real-time instruction about prolonging your life, or whether you'd rather the agent's instruction control instead. Initial neither box and your declaration controls by default, with any conflicting agent instruction on that point set aside.

8. 8

   Nothing in North Carolina's declaration law changes, suspends, or voids your declaration if you become pregnant.

9. 9

   You may revoke your declaration at any time, in writing or in any manner that clearly and consistently communicates your intent, regardless of your mental or physical condition at the time.

10. 10

    Filing your declaration with the North Carolina Secretary of State's Advance Health Care Directive Registry is optional and costs ten dollars. Skipping it does not affect whether your declaration is valid.

North Carolina Requirements for Living Will

• Declaration of Intent (North Carolina General Statutes Section 90-321)

  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.

• Terminal Condition Trigger (North Carolina General Statutes Section 90-321(c))

  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.

• Permanent Unconsciousness Trigger (North Carolina General Statutes Section 90-321(c))

  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.

• Advanced Dementia Trigger (North Carolina General Statutes Section 90-321(c))

  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.

• Artificial Nutrition and Hydration Exceptions (North Carolina General Statutes Section 90-321(d1))

  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).

• Comfort Care Instruction (North Carolina General Statutes Section 90-321(d1))

  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.

• Witness Requirements (North Carolina General Statutes Section 90-321(c))

  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.

• Notary or Clerk Proof Requirement (North Carolina General Statutes Section 90-321(c))

  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.

• Revocation Procedures (North Carolina General Statutes Section 90-321(e))

  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.

• Health Care Provider Immunity (North Carolina General Statutes Section 90-321(h))

  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.

• Patient Self-Determination Act Compliance (42 U.S.C. Section 1395cc(f))

  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.

• HIPAA Authorization (45 CFR Section 164.508)

  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.

• Organ Donation (North Carolina Revised Uniform Anatomical Gift Act, General Statutes Section 130A-412.3 et seq.)

  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.

• Out-of-State Recognition (North Carolina General Statutes Section 90-321(l))

  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.

• Physician Determination and Second-Opinion Confirmation (North Carolina General Statutes Section 90-321(b))

  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.

• Relationship to Health Care Power of Attorney (North Carolina General Statutes Section 32A-15(c))

  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.

• Conscience Clause Recognition (North Carolina General Statutes Section 90-321(k))

  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.

• Statutory Form Compliance (North Carolina General Statutes Section 90-321(d1))

  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.

• Medicare and Medicaid Compliance (42 CFR Section 489.102)

  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.

• Combination with Health Care Power of Attorney (North Carolina General Statutes Section 90-321(j))

  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.