The Law Office of Natalie J. Miller

Living Wills: After You Are Declared Incompetent

After the above medical requirements are met, if there is no valid living will in place, life‑prolonging measures may be withheld or discontinued upon the direction and under the supervision of the attending physician with the concurrence of the following persons, in the following order of priority pursuant to N.C.G.S § 90-322(b):

  1. A health care agent appointed pursuant to a valid health care power of attorney. The agent is limited to the extent granted in the health care power of attorney and to the extent provided in N.C.G.S. 32A‑19(b);
  2. A court appointed guardian with powers over the patient's person appointed;
  3. An attorney‑in‑fact under a durable power of attorney if the document provides the power make health care decisions, to the extent of the authority granted;
  4. The patient's spouse;
  5. A majority of the patient's reasonably available parents and children who are at least 18 years of age;
  6. A majority of the patient's reasonably available siblings who are at least 18 years of age;
  7. An individual who has an established relationship with the patient, who is acting in good faith on behalf of the patient, and who can reliably convey the patient's wishes; OR
  8. If none of the above is reasonably available then at the discretion of the attending physician the life‑prolonging measures may be withheld or discontinued upon the direction and under the supervision of the attending physician.”

It is important to note that if neither an agent under a valid health care power of attorney nor a spouse is available, the children and parents of the patient are equal in priority. This could be a point of conflict for the family if the children and parents do not see eye to eye.

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