State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_90 > GS_90-321

§ 90‑321.  Right to anatural death.

(a)        The followingdefinitions apply in this Article:

(1)        Declarant. – Aperson who has signed a declaration in accordance with subsection (c) of thissection.

(1a)      Declaration. – Anysigned, witnessed, dated, and proved document meeting the requirements ofsubsection (c) of this section.

(2)        Repealed by SessionLaws 2007‑502, s. 11(a), effective October 1, 2007.

(2a)      Life‑prolongingmeasures. – As defined in G.S. 32A‑16(4).

(3)        Physician. – Anyperson licensed to practice medicine under Article 1 of Chapter 90 of the lawsof the State of North Carolina.

(4)        Repealed by SessionLaws 2007‑502, s. 11(a), effective October 1, 2007.

(b)        If a person hasexpressed through a declaration, in accordance with subsection (c) of this section,a desire that the person's life not be prolonged by life‑prolongingmeasures, and the declaration has not been revoked in accordance withsubsection (e) of this section; and

(1)        It is determined bythe attending physician that the declarant's present condition is a conditiondescribed in subsection (c) of this section and specified in the declarationfor applying the declarant's directives, and

(2)        There isconfirmation of the declarant's present condition as set out in subdivision(b)(1) of this section by a physician other than the attending physician;

then the life‑prolongingmeasures identified by the declarant shall or may, as specified by thedeclarant, be withheld or discontinued upon the direction and under thesupervision of the attending physician.

(c)        The attendingphysician shall follow, subject to subsections (b), (e), and (k) of thissection, a declaration:

(1)        That expresses adesire of the declarant that life‑prolonging measures not be used toprolong the declarant's life if, as specified in the declaration as to any orall of the following:

a.         The declarant has anincurable or irreversible condition that will result in the declarant's deathwithin a relatively short period of time; or

b.         The declarantbecomes unconscious and, to a high degree of medical certainty, will neverregain consciousness; or

c.         The declarantsuffers from advanced dementia or any other condition resulting in thesubstantial loss of cognitive ability and that loss, to a high degree ofmedical certainty, is not reversible.

(2)        That states that thedeclarant is aware that the declaration authorizes a physician to withhold ordiscontinue the life‑prolonging measures; and

(3)        That has been signedby the declarant in the presence of two witnesses who believe the declarant tobe of sound mind and who state that they (i) are not related within the thirddegree to the declarant or to the declarant's spouse, (ii) do not know or havea reasonable expectation that they would be entitled to any portion of theestate of the declarant upon the declarant's death under any will of thedeclarant or codicil thereto then existing or under the Intestate SuccessionAct as it then provides, (iii) are not the attending physician, licensed healthcare providers who are paid employees of the attending physician, paidemployees of a health facility in which the declarant is a patient, or paidemployees of a nursing home or any adult care home in which the declarantresides, and (iv) do not have a claim against any portion of the estate of thedeclarant at the time of the declaration; and

(4)        That has been provedbefore a clerk or assistant clerk of superior court, or a notary public whocertifies substantially as set out in subsection (d1) of this section. A notarywho takes the acknowledgement may but is not required to be a paid employee ofthe attending physician, a paid employee of a health facility in which thedeclarant is a patient, or a paid employee of a nursing home or any adult carehome in which the declarant resides.

(d)        Repealed by SessionLaws 2007‑502, s. 11(b), effective October 1, 2007.

(d1)      The following formis specifically determined to meet the requirements of subsection (c) of thissection:

ADVANCE DIRECTIVE FOR A NATURAL DEATH ("LIVINGWILL")

NOTE:YOU SHOULD USE THIS DOCUMENT TO GIVE YOUR HEALTH CARE PROVIDERS INSTRUCTIONS TOWITHHOLD OR WITHDRAW LIFE‑PROLONGING MEASURES IN CERTAIN SITUATIONS.THERE IS NO LEGAL REQUIREMENT THAT ANYONE EXECUTE A LIVING WILL.

GENERAL INSTRUCTIONS: Youcan use this Advance Directive ("Living Will") form to giveinstructions for the future if you want your health care providers to withholdor withdraw life‑prolonging measures in certain situations. You shouldtalk to your doctor about what these terms mean. The Living Will states whatchoices you would have made for yourself if you were able to communicate. Talkto your family members, friends, and others you trust about your choices. Also,it is a good idea to talk with professionals such as your doctors,clergypersons, and lawyers before you complete and sign this Living Will.

Youdo not have to use this form to give those instructions, but if you create yourown Advance Directive you need to be very careful to ensure that it isconsistent with North Carolina law.

ThisLiving Will form is intended to be valid in any jurisdiction in which it ispresented, but places outside North Carolina may impose requirements that thisform does not meet.

Ifyou want to use this form, you must complete it, sign it, and have yoursignature witnessed by two qualified witnesses and proved by a notary public.Follow the instructions about which choices you can initial very carefully. Donot sign this form until two witnesses and a notary public are present towatch you sign it. You then should consider giving a copy to your primaryphysician and/or a trusted relative, and should consider filing it with theAdvanced Health Care Directive Registry maintained by the North CarolinaSecretary of State: https://www.nclifelinks.org/ahcdr/

My Desire for a Natural Death

I, ____________________, being ofsound mind, desire that, as specified below, my life not be prolonged by life‑prolongingmeasures:

1.         When My DirectivesApply

            My directions aboutprolonging my life shall apply IF my attending physiciandetermines that I lack capacity to make or communicate health care decisionsand:

            NOTE: YOU MAYINITIAL ANY AND ALL OF THESE CHOICES.

_________                     Ihave an incurable or irreversible condition that will result
     (Initial)                      in my death within a relativelyshort period of time.

_________                     Ibecome unconscious and my health care providers
     (Initial)                      determine that, to a high degree ofmedical certainty, I will
                                       never regain my consciousness.

_________                     Isuffer from advanced dementia or any other condition
     (Initial)                      which results in the substantialloss of my cognitive ability
                                       and my health care providers determinethat, to a high
                                       degree of medical certainty, this lossis not reversible.

2.         These are MyDirectives about Prolonging My Life:

            In those situations Ihave initialed in Section 1, I direct that my health care providers:

            NOTE: INITIAL ONLYIN ONE PLACE.

_________                     maywithhold or withdraw life‑prolonging measures.

     (Initial)

_________                     shallwithhold or withdraw life‑prolonging measures.

     (Initial)

3.         Exceptions –"Artificial Nutrition or Hydration"

            NOTE: INITIAL ONLY IF YOU WANT TO MAKEEXCEPTIONS TO YOUR INSTRUCTIONS IN PARAGRAPH 2.

            EVEN THOUGH I do notwant my life prolonged in those situations I have initialed in Section 1:

_________                     IDO want to receive BOTH artificial hydration AND
     (Initial)                      artificial nutrition (for example,through tubes) in those
                                       situations.

NOTE:DO NOT INITIAL THIS BLOCK IF ONE OF THE BLOCKS BELOW IS INITIALED.

_________                     IDO want to receive ONLY  artificial hydration (for
     (Initial)                      example, through tubes) in thosesituations.

NOTE:DO NOT INITIAL THE BLOCK ABOVE OR BELOW IF THIS BLOCK IS INITIALED.

_________                     IDO want to receive ONLY artificial nutrition (for
     (Initial)                      example, through tubes) in thosesituations.

NOTE:DO NOT INITIAL EITHER OF THE TWO BLOCKS ABOVE IF THIS BLOCK IS INITIALED.

4.         I Wish to be Madeas Comfortable as Possible

I directthat my health care providers take reasonable steps to keep me as clean,comfortable, and free of pain as possible so that my dignity is maintained,even though this care may hasten my death.

5.         I Understand myAdvance Directive

I amaware and understand that this document directs certain life‑prolongingmeasures to be withheld or discontinued in accordance with my advanceinstructions.

6.         If I have anAvailable Health Care Agent

If Ihave appointed a health care agent by executing a health care power of attorneyor similar instrument, and that health care agent is acting and available andgives instructions that differ from this Advance Directive, then I direct that:

_________                     FollowAdvance Directive:  This Advance Directive will
     (Initial)                      override instructions myhealth care agent gives about
                                       prolonging my life.

_________                     FollowHealth Care Agent:  My health care agent has
     (Initial)                      authority to override thisAdvance Directive.

NOTE: DO NOT INITIAL BOTH BLOCKS. IF YOU DO NOT INITIALEITHER BOX, THEN YOUR HEALTH CARE PROVIDERS WILL FOLLOW THIS ADVANCE DIRECTIVEAND IGNORE THE INSTRUCTIONS OF YOUR HEALTH CARE AGENT ABOUT PROLONGING YOURLIFE.

7.         My Health Care Providers May Rely on thisDirective

Myhealth care providers shall not be liable to me or to my family, my estate, myheirs, or my personal representative for following the instructions I give inthis instrument. Following my directions shall not be considered suicide, orthe cause of my death, or malpractice or unprofessional conduct. If I haverevoked this instrument but my health care providers do not know that I havedone so, and they follow the instructions in this instrument in good faith,they shall be entitled to the same protections to which they would have beenentitled if the instrument had not been revoked.

8.         I Want this Directive to be EffectiveAnywhere

            I intend that this Advance Directive befollowed by any health care provider in any place.

9.         I have the Right to Revoke this AdvanceDirective

Iunderstand that at any time I may revoke this Advance Directive in a writing Isign or by communicating in any clear and consistent manner my intent to revokeit to my attending physician. I understand that if I revoke this instrument Ishould try to destroy all copies of it.

This the ________ day of ____________, _________.

                                                            ___________________________________

                                                            PrintName __________________________

I hereby state that thedeclarant, ______________________, being of sound mind, signed (or directedanother to sign on declarant's behalf) the foregoing Advance Directive for aNatural Death in my presence, and that I am not related to the declarant byblood or marriage, and I would not be entitled to any portion of the estate ofthe declarant under any existing will or codicil of the declarant or as an heirunder the Intestate Succession Act, if the declarant died on this date withouta will. I also state that I am not the declarant's attending physician, nor alicensed health care provider who is (1) an employee of the declarant'sattending physician, (2) nor an employee of the health facility in which thedeclarant is a patient, or (3) an employee of a nursing home or any adult carehome where the declarant resides. I further state that I do not have any claimagainst the declarant or the estate of the declarant.

Date: _____________________________          Witness: ___________________________

Date: _____________________________          Witness: ___________________________

________________COUNTY,_________________STATE

Sworn to (or affirmed) andsubscribed before me this day by _____________________

                                                                                                     (type/printname of declarant)

                                                                                                     ________________________

                                                                                                     (type/printname of witness)

                                                                                                     ________________________

                                                                                                     (type/printname of witness)

Date  ___________________________                        ______________________________

                   (OfficialSeal)                                              Signature of NotaryPublic

                                                                                       __________________,Notary Public

                                                                                       Printedor typed name

                                                                                       Mycommission expires: _________

(e)        A declaration maybe revoked by the declarant, in writing or in any manner by which the declarantis able to communicate the declarant's intent to revoke in a clear andconsistent manner, without regard to the declarant's mental or physicalcondition. A health care provider shall have no liability for acting inaccordance with a revoked declaration unless the provider has actual notice ofthe revocation. A health care agent may not revoke a declaration unless thehealth care power of attorney explicitly authorizes that revocation; however, ahealth care agent may exercise any authority explicitly given to the healthcare agent in a declaration. A guardian of the person of the declarant orgeneral guardian may not revoke a declaration.

(f)         The execution andconsummation of declarations made in accordance with subsection (c) shall notconstitute suicide for any purpose.

(g)        No person shall berequired to sign a declaration in accordance with subsection (c) as a conditionfor becoming insured under any insurance contract or for receiving any medicaltreatment.

(h)        The withholding ordiscontinuance of life prolonging measures in accordance with this sectionshall not be considered the cause of death for any civil or criminal purposesnor shall it be considered unprofessional conduct or a lack of professionalcompetence. Any person, institution or facility against whom criminal or civilliability is asserted because of conduct in compliance with this section mayinterpose this section as a defense. The protections of this section extend toany valid declaration, including a document valid under subsection (l) of thissection; these protections are not limited to declarations prepared inaccordance with the statutory form provided in subsection (d1) of this section,or to declarations filed with the Advance Health Care Directive Registrymaintained by the Secretary of State. A health care provider may rely in goodfaith on an oral or written statement by legal counsel that a document appearsto meet the statutory requirements for a declaration.

(i)         Use of thestatutory form prescribed in subsection (d1) of this section is an optional andnonexclusive method for creating a declaration and does not affect the use ofother forms of a declaration, including previous statutory forms.

(j)         The form providedby this section may be combined with or incorporated into a health care powerof attorney form meeting the requirements of Article 3 of Chapter 32A of theGeneral Statutes; provided, however, that the resulting form shall be signed,witnessed, and proved in accordance with the provisions of this section.

(k)        Notwithstandingsubsection (c) of this section:

(1)        An attendingphysician may decline to honor a declaration that expresses a desire of thedeclarant that life‑prolonging measures not be used if doing so wouldviolate that physician's conscience or the conscience‑based policy of thefacility at which the declarant is being treated; provided, an attendingphysician who declines to honor a declaration on these grounds must notinterfere, and must cooperate reasonably, with efforts to substitute anattending physician whose conscience would not be violated by honoring thedeclaration, or transfer the declarant to a facility that does not havepolicies in force that prohibit honoring the declaration.

(2)        An attendingphysician may decline to honor a declaration if after reasonable inquiry thereare reasonable grounds to question the genuineness or validity of adeclaration. The subsection imposes no duty on the attending physician toverify a declaration's genuineness or validity.

(l)         Notwithstandingsubsection (c) of this section, a declaration or similar document executed in ajurisdiction other than North Carolina shall be valid in this State if itappears to have been executed in accordance with the applicable requirements ofthat jurisdiction or this State.  (1977, c. 815; 1979, c. 112, ss. 1‑6; 1981, c.848, ss. 1‑3; 1991, c. 639, s. 3; 1993, c. 553, s. 28; 2001‑455, s.4; 2001‑513, s. 30(b); 2007‑502, ss. 11(a)‑(e).)