A “living will” is a type of advance directive that guides your family and healthcare team through the medical treatment you wish to receive if you are unable to communicate your own wishes. A living will is not a will, but rather, a document that speaks for you when you are unable to speak for yourself.

What Does a Living Will Do?

North Carolina law allows patients who are terminally ill or in a persistent vegetative state to decline any and all extraordinary means of survival, from artificial ventilation to food or water introduced intravenously. The State provides a statutory short form that you can fill out, but it is advisable to engage an estate planning attorney experienced in handling end-of-life issues to ensure your document is drafted and executed in accordance with North Carolina law.

The benefit of a living will is to ensure that your specific wishes regarding end-of-life care are honored. It will also prevent or minimize disputes among family members or between your caregivers and healthcare providers about how to best treat you when you are unable to make that decision for yourself.

In North Carolina, you will sign your living will in the presence of two witnesses and the document will be notarized. While the law used to require the documents to be recorded in the Register of Deeds office in the county in which the document was executed, this is no longer the case. Simply keep the document safe – give a copy to your estate planning attorney, your healthcare agent, and a trusted family member or friend.

When Does My Living Will Take Effect?

Although you, your attorney, and a trusted family member, caregiver, or friend will draft your living will before you find yourself in a terminal or vegetative condition, your document will not take effect until you are rendered legally incapacitated. This is because the law always favors the patient’s intent: When you are able to express your intent for yourself, the law will honor your wishes, but when you are incapacitated, your living will is deemed the best representation of your intent.

As of January 2018, North Carolina law provides a legal definition of incapacity as:

The inability of an individual to manage property or business affairs because the individual has any of the following statuses:

  • An impairment in the ability to receive and evaluate information or make or communicate decisions even with the use of technological assistance; or
  • Is missing, detained, including incarcerated in a penal system, or outside the United States and unable to return.

In other words, you are deemed incapacitated when you can no longer make decisions for yourself.

Once you’ve become incapacitated, the healthcare agent you designate through your healthcare power of attorney will present your living will document to your medical provider. This individual – whom you will appoint before incapacity sets in – will act as your agent in ensuring your wishes are honored.

Work with a North Carolina Estate Planning Attorney

While it is not comfortable to have conversations about end-of-life issues, it is never too early to start planning. Securing a valid, enforceable living will that complies with your wishes will guide your family members, caregivers, and healthcare providers in an emergent situation, minimizing or even preventing conflicts or distress in trying to discern what you would have wanted in a particular situation.

It is advisable to engage an experienced estate planning attorney to help you prepare and execute your advance directives so you can ensure that they are enforceable and comply with your wishes. If you would like to secure your own living will, contact Rountree Losee for a consultation.