Law Offices of Natalie J. Miller, PLLC

What a Living Will Can and Cannot Accomplish

To determine what a living will (also known as a “Declaration Of A Desire For A Natural Death”) can and cannot accomplish we must define what a living will is exactly. A “living will” is “an instrument, signed with the formalities statutorily required for a will, by which a person directs that his or her life not be artificially prolonged by extraordinary measures when there is no reasonable expectation of recovery from extreme physical or mental disability.” Black's Law Dictionary, Eighth Edition. The entire concept of a living will is centered on the term “Life-prolonging measures”. “Life-prolonging measures” is defined in the North Carolina General Statutes as:

“…medical procedures or interventions which in the judgment of the attending physician would serve only to postpone artificially the moment of death by sustaining, restoring, or supplanting a vital function, including mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and similar forms of treatment. Life‑prolonging measures do not include care necessary to provide comfort or to alleviate pain.” N.C.G.S. §32A-16(4).

With that being said, North Carolina law falls short of permitting assisted suicide. N.C.G.S. § 90-320(b) states, “nothing in this Article shall be construed to authorize any affirmative or deliberate act or omission to end life other than to permit the natural process of dying.”

What happens In The Absence of A Valid Living Will

One of the best ways to see the value of a document is to determine what happens when the document does not exist. If a patient meets certain medical requirements and there is no living will, the North Carolina statutes provide a procedure for determining who can consent to withholding of life-prolonging measures. This process begins with a determination of whether or not the patient lacks capacity and a determination regarding the necessity of life-prolonging measures for the patient. Pursuant to N.C.G.S. § 90-322(a), before consent can be granted by a party other than the patient, the attending physician must determine, to a high degree of medical certainty, that a person lacks capacity to make or communicate health care decisions and the person will never regain that capacity and:

  1. Has an incurable or irreversible condition that will result in the person’s death within a relatively short period of time; OR
  2. Is unconscious and, to a high degree of medical certainty, will never regain consciousness; AND
  3. There is confirmation of the person’s present condition in writing by a physician other than the attending physician; AND
  4. A vital bodily function of the person could be restored or is being sustained by life-prolonging measures.

It is important to note that if all the above-referenced conditions are present it is likely the patient is being kept alive with life-prolonging measures, otherwise the person would have already passed away. So, the question in this case becomes a question of withdrawing life-prolonging measures rather than one of withholding such measures.

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