Advance directives are legal documents which state your choices about medical treatment and/or allow you to name someone else to make decisions about your medical treatment if you are unable to make these decisions for yourself. Through advance directives, you can make legally valid decisions that inform your doctors, friends and family about your wishes in future medical care.

Both North Carolina and federal law give every alert competent adult, 18 years old or older, the right to make their own decisions regarding their health care and treatment.  These rights include the right to choose what care or treatment to accept, reject or discontinue altogether. If you do not want to receive certain types of treatment or you wish to name someone to make health care decisions for you, you have the right and responsibility to make these desires known to your doctor, hospital or other health care providers.  North Carolina law (the Right to a Natural Death Act) states that a properly written and executed advanced directives and must be honored by any health care personnel taking care of you. In the event that your doctor or other health care provider cannot or will not follow your advance directives for moral, religious or professional reasons, they must immediately tell you or your representative. They must also help transfer you to another doctor or facility that will honor your directives.

North Carolina law recognizes 3 types of advance directives:

1. Living Wills (Declaration Of A Desire For A Natural Death)
2. Health Care Powers of Attorney
3. Advance Instructions for Mental Health Treatment

All three of these documents work together to ensure your wishes regarding your medical treatment are honored.  Each are valid by themselves and all three are not required for each to be effective.  However, each serves a different purpose and is important to to discuss the importance of each with an attorney.

In addition, a Medical Directive can be used to supplement these documents.

Living Will (Declaration Of A Desire For A Natural Death)

A Living Will is a document which informs your doctors of your wishes regarding life-sustaining procedures when you are not able to communicate them yourself.  Often a Living Will is used to let health care providers know that you do not want your life prolonged by extraordinary measures in the event you have a terminal and incurable illness or are in a persistent vegetative state.

In North Carolina, for a Living Will to become effective it must be diagnosed by your doctor that you are no longer able to make your own health care decisions. In addition, your doctor and at least one other doctor must determine that you have a terminal and incurable condition or are in a persistent vegetative state.  They must also have a a copy of the Living Will.

A Living Will is only useful if you have a terminal and incurable illness or are in a persistent vegetative state. If you cannot communicate your wishes for any reason other than terminal and incurable illness or persistent vegetative state (such as stroke, Alzheimer's or sever dementia), your family or Health Care Agent (if you have a Health Care Power of Attorney) will be required to make decisions for you.  If your doctor or health care facility is unsure of what action to take, or if your family members cannot agree, the courts will decide in a process that can take years to resolve.

A Living Will executed in North Carolina may not be valid in another state since Living Will laws differ in virtually every state that has such laws.  Even with a Living Will, it is very important for you to discuss your wishes with your family to be sure they understand what you would want in the event can no longer speak for yourself.

Health Care Power of Attorney

A Health Care Power of Attorney is a legal document which allows you to appoint an individual (called your agent) to make medical and/or mental health decisions for you in the event you become temporarily or permanently unable to make those decisions yourself. A Health Care Power of Attorney takes becomes effective, and your agent can begin making health care decisions for you, at the point when your doctor determines that you are unable to make or communicate decisions yourself.

Your agent has the same authority you would have to hire and fire health care providers; admit or discharge you from a health care institution; and consent to or refuse tests or treatments.  Unless you chose to limit your agent's authority by having the limitation stated in the document, your agent will be able to make almost every treatment decision that you could make if you were able to do so. If your wishes are not known or cannot be determined, your agent has the duty to act in your best interest in the performance of his/her duties. These decisions can include authorizing, refusing or withdrawing treatment, even if it means that you will die as a result.

You can appoint almost any competent individual 18 years of age or older as your agent.  It is important to ensure that the person you select as your agent is knowledgeable about your wishes, values, and religious beliefs. Discuss your wishes with the person you have chosen and make sure that they understand and agree to accept the responsibility.

You can select a member of your family, such as your spouse, child, brother or sister, or a close friend to be your Health Care Agent. If you select your spouse and the marriage is dissolved or annulled, the appointment of your spouse as your agent is revoked.

The only person who cannot serve as your agent is any person whom you are paying to provide you health care services.

Unlike the Living Will, which is limited to terminal and incurable illness or a persistent vegetative state, a Health Care Power of Attorney applies in any care where you are unable to make medical decisions, such as when you’re temporarily incapacitated or seriously ill.  Having both a Living Will and a Health Care Power of Attorney can assist your agent in carrying out your wishes.

Advanced Instruction for Mental Health Treatment

An Advance Instruction for Mental Health Treatment allows you to give instructions and preferences regarding mental health treatment. The advance instruction may include consent to, or refusal of, mental health treatment. "Mental health treatment" is defined by by law as the process of providing for the physical, emotional, psychological, and social needs of the principal (patient) for the principal's mental illness. "Mental health treatment" includes, but is not limited to, electroconvulsive treatment, treatment of mental illness with psychotropic medication, and admission to and retention in a facility for care or treatment of mental illness.

An Advance Instruction for Mental Health Treatment may include:

• The names and telephone numbers of individuals to be contacted in case of a mental health crisis;

• Situations that may cause the principal to experience a mental health crisis;

• Responses that may assist the principal to remain in the principal's home during a mental health crisis;

• The types of assistance that may help stabilize the principal if it becomes necessary to enter a facility; and

• Medications that the principal is taking or has taken in the past and the effects of those medications.

The Advance Instruction for Mental Health Treatment is designed for people who have mental illnesses such as paranoia, schizophrenia, or a bi-polar disorder. It is not designed for people who may be experiencing mental health problems associated with aging, such as Alzheimer's disease or dementia. People who are concerned with these types of mental health problems may use a Health Care Power of Attorney to express their preferences for mental health care treatment.

Read North Carolina law regarding Advance Instructions for Mental Health Treatment.

The Medical Directive

A Medical Directive allows you to specifically state, while you are mentally alert and competent, which situations you do or do not wish certain medical interventions performed.  It is not possible to foresee all the situations that may occur, but stating your wishes for some situations is a helpful guide for those who will be making decisions about your care.

The power to execute a Medical Directive comes from your virtually unlimited right as a mentally alert and competent adult to refuse medical treatment.  A Medical Directive is valuable evidence of decisions you made while you were competent for use in times when you are no longer able to make decisions for yourself.  The Medical Directive alone does not have the power of a legal document, but it is an important document for others making decisions about your future medical care.  It is evidence of how you feel about certain medical procedures and assists those who are trying to help you toward the end of your life.

If you wish your Medical Directive to have the force of a legal document, you may make it a part of the section on special provisions and limitations in your Health Care Power of Attorney.