What Is a Living Will?

Life Support Do Not UnplugA North Carolina Living Will (also known as an “Advance Directive for a Desire for a Natural Death”) is a document in which you provide instructions to your Health Care Agent and health care providers regarding whether or not you want life support and life-sustaining measures in an end-of-life scenario. While it is intended to tell your Health Care Agent how you want to be cared for while you are living, many think of it as the “pull the plug” document.

It is important to understand that a Living Will is not a substitute for having a Health Care Power of Attorney that nominates a Health Care Agent to make health care decisions on your behalf if you are incapacitated.

Do I Have to Have a Living Will?

No, legally it is not required, but it is strongly recommended. For most individuals, their North Carolina Health Care Power of Attorney authorizes their Health Care Agent to make decisions regarding end-of-life care and termination of life support. However, while the Health Care Power of Attorney may authorize your Health Care Agent to make such decisions, typically, it does not provide your Health Care Agent with meaningful guidance regarding your wishes.

Shortcomings of the North Carolina Statutory Living Will

We are often asked why we do not use the North Carolina Statutory Living Will (also referred to as the North Carolina Advance Directive for a Desire for a Natural Death). We feel that the statutory form has several shortcomings:

  • It is confusing to complete and we find that many complete the form incorrectly;
  • It often does not provide any additional guidance beyond what was already stated in the Health Care Power of Attorney. For example, we find that most people complete the form to indicate that the Health Care Agent “may” withdraw life support—something that they’re already authorized to do under the Health Care Power of Attorney.
  • It doesn’t really provide meaningful guidance. The North Carolina Statutory Living Will is extremely broad and only addresses very specific treatments under very specific end-of-life circumstances such as if you have an incurable or irreversible condition that will result in death within a short period of time, if you become unconscious and to a high degree of medical certainty you are not expected to regain consciousness, or you suffer from advanced dementia.
  • It doesn’t provide meaningful guidance to your Health Care Agent about the multitude of other health care decisions, treatment options, long-term care scenarios, and similar that they may face.

Why We Use a Custom Health Care Power of Attorney, Living Will, and Other Supporting Documents

Our office uses custom Health Care Power of Attorney and Living Will documents along with several accompanying tools to provide your Health Care Agent, health care providers, and your family with meaningful guidance about your health care wishes. These documents have been carefully curated over time to keep up with the changing world of medicine and address unique issues relating to dementia, end-of-life, dying with dignity laws, and more. Unfortunately, the statutory forms and other common form documents such as Five Wishes fail to expand upon these issues.

Health Care Power of Attorney

A Health Care Power of Attorney allows you to nominate a Health Care Agent to make health care decisions on your behalf if you should become incapacitated. A well-drafted Health Care Power of Attorney should address modern medicine and laws by addressing issues such as right-to-die laws, dementia directives, discharging from hospital against medical orders, and more.

Living Will

Our Living Will is based on recommendations from the Harvard Medical Journal and addresses several potential end-of-life care scenarios, allowing you to provide different instructions for your care wishes depending upon the severity of the situation. Rather than simply addressing CPR, mechanical breathing, and artificial nutrition and hydration, it also addresses other life-sustaining treatment options that you may or may not want, ranging from treatments that are considered by most to be quite invasive to non-invasive treatments like antibiotics and simple diagnostics. It also includes a Glossary of health care terms so you and your Health Care Agent understand the distinction between different treatment options.

HIPAA Authorization

The federal Health Insurance Portability & Accountability Act (HIPAA) is well-meaning law to protect our private health care information. However, the laws are so strictly enforced that it prohibits health care providers from sharing your medical information with anyone—including your spouse or family in an emergency. As a result, it has become more important than ever to have a HIPAA Authorization clearly communicating who your health care providers are authorized to communicate with about your health care—this includes not only your Health Care Agent, but those that may be handling your medical bills and insurance such as your Durable Power of Attorney or Trustee.

Letter of Instruction to My Health Care Agent

Our Letter of Instruction to My Health Care Agent provides you with a tool to think through other potential health care considerations including wishes regarding surgery, chemotherapy, alternative or experimental medicine, dying with dignity laws, family visitation, dementia directives, and long-term care wishes.

Personal Care Plan

Our Personal Care Plan tells future potential caregivers about you as a person including the little day-to-day preferences that can be easy to take for granted while we're healthy, but can suddenly become important if you can no longer communicate your wishes. For example, if you were to suffer a stroke and end up with aphasia, you may be fully aware of your surroundings but may have not be able to communicate your wishes to your caregivers. The Personal Care Plan addresses things such as what you like to eat and drink, hobbies, what you like to watch on television, what music you enjoy, and similar.

Personal Planning Portfolio

Our Personal Planning Portfolio also includes instructions for your Health Care Agent explaining their role and their duties and answering frequently asked questions that they may have such as when a Do Not Resuscitate (DNR) may be appropriate.

Ideally, a comprehensive estate plan should include long-term care planning. In the event that you should need long-term care, your plan should provide your Health Care Agent and family with clear instructions about your long-term care preferences and a plan for how to pay for such care.

Although it’s not pleasant to consider one’s potential future incapacitation, we strongly encourage you to share some detailed guidance with your Health Care Agent regarding your health care preferences. This will allow you to preserve as much independence and dignity as possible and will reduce stress and family disputes.

Get Started on Your Planning & Peace of Mind

We can guide you through the steps of creating a comprehensive health care plan and make the process as easy as possible for you and your family. A great place to start if you're looking to learn more is to attend one of our free public seminars or request our report, Estate Planning Pitfalls: The Twelve Most Common Threats To Your Estate & Your Family’s Future. If you'd like to discuss other ways to get started, call us at 919-586-8222 or complete our online contact form.

 

Jackie Bedard
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Attorney, Author, and Founder of Carolina Family Estate Planning