Will Your Wishes Be Honored When It Matters Most?

by Tyler Chriscoe

In my experience, a considerable number of people aren’t familiar with what is normally called a “living will.” Although you may have heard of living wills, this is an overview of why it is an important part of your estate planning.

A living will, otherwise known as an “Advance Directive for a Natural Death,” is a document that gives your healthcare providers instructions regarding whether to withhold or withdraw life-prolonging measures in certain situations. It is a document for you to express your desires concerning end-of-life care, that is, whether to be kept alive with life prolonging measures. Physicians routinely rely on these documents in making end-of-life decisions.

An Individual’s Right to a Peaceful and Natural Death
The North Carolina General Assembly has set out a statutory procedure in creating living wills so that all North Carolina health care providers can rely on the same document. However, the specific language of the statute is often revised. The language at the beginning of the statute is worth quoting in full:
The General Assembly recognizes as a matter of public policy that an Individual’s rights include the right to a peaceful and natural death and that a patient … has the fundamental right to control the decisions relating to the rendering of the patient’s own medical care, including the decision to have life-prolonging measures withheld or withdrawn in instances of a terminal condition.

When Does a Living Will Apply?
By completing the document appropriately, a person can direct withholding or withdrawal of life­ prolonging measures, if both the following are true: (I) the person’s attending physician determines that the person lacks capacity to make or communicate healthcare decisions and (II) the person meets at least one of the following conditions:
(i) The person is determined to have an incurable or irreversible condition that will result in death within a relatively short period of time; or
(ii) The person becomes unconscious and his or her healthcare providers determine that, to a high degree of medical certainty, that he or she will never regain consciousness; or
(iii) The person suffers from advanced dementia or any other condition that results in the substantial loss of his or her cognitive ability and the healthcare provider determines that, to a high degree of medical certainty, the loss is not reversible.

If you are still able to make and communicate healthcare decisions, then the living will does not apply. Also, it should be noted that exceptions are allowed within the living will, if the person desires to make exceptions for either artificial hydration, artificial nutrition, or both.

What are the Benefits of a Living Will?
The most important benefit of having a living will is ensuring that your desires are observed when the time comes. A living will can also settle family disagreements when there is confusion about what you would desire if you were able to communicate. Although it is not a legal requirement, it is a measure to prevent problems from occurring in the future and to ensure your desires are followed. It is important to note that the living will can be revoked either by being signed in writing or by a clear communication by you to your attending physician.
In planning your affairs, don’t overlook the potential benefits of having a living will in your estate plan.


Chriscoe, an attorney with Robert S. Thompson, PA in Southern Pines, can be reached at 910-692-2244.