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The Law Office of Natalie J. Miller

What Happens In The Presence Of A Valid Living Will

Now that we know what happens when there is no valid living will, we can examine what happens when a valid living will exists. Doctors have a legal and ethical obligation to act in their patient’s “best interests”, including acting in accordance with the patient’s past and present wishes. The living will is at its core an expression of the patient’s wishes. The North Carolina General Statutes explicitly recognize, as a matter of public policy, that an individual's rights include the right to a peaceful and natural death and that a patient, or the patient's representative, has the fundamental right to control the decisions relating to the rendering of the patient's own medical care, including the decision to have life‑prolonging measures withheld or withdrawn in instances of a terminal condition. N.C.G.S. §90-320(a).

There are specific procedures that must be followed before the attending physician can withhold extraordinary means pursuant to a living will. First, per N.C.G.S. § 90-321(c), the patient must have expressed via a written statement a specific desire that life‑prolonging measures not be used to prolong his/her life in the case of any or all of the following conditions:

  1. An incurable or irreversible condition that will result in the patient’s death within a relatively short period of time; OR
  2. Unconsciousness from which the patient will, to a high degree of medical certainty, never recover; OR
  3. Advanced dementia or any other condition resulting in the substantial loss of cognitive ability and that loss, to a high degree of medical certainty, is not reversible.

Thus, the living will must specifically include the above-referenced conditions to apply to said condition. Failure to include the condition would mean that life-prolonging measures would be continued under the excluded circumstances.

Second, the patient must specifically express via the written statement that they are aware that the living will authorizes a physician to withhold or discontinue the life‑prolonging measures. N.C.G.S. § 90-321(c).

Third, the written statement expressing the first and second criteria must be signed by the patient in the presence of two witnesses who believe the patient to be of sound mind and who state that they

“(i) are not related within the third degree to the patient or to the patient's spouse, (ii) do not know or have a reasonable expectation that they would be entitled to any portion of the estate of the patient upon the patient's death under any will of the patient or codicil thereto then existing or under the Intestate Succession Act as it then provides, (iii) are not the attending physician, licensed health care providers who are paid employees of the attending physician, paid employees of a health facility in which the declarant is a patient, or paid employees of a nursing home or any adult care home in which the patient resides, and (iv) do not have a claim against any portion of the estate of the patient at the time of the declaration.” N.C.G.S. § 90-321(c).

As you can see, there is more to the witness’ statement than merely witnessing. It is helpful to have an attorney draft the living will to include the appropriate witness certification.

Fourth, the Living Will must be notarized