The Law Office of Natalie J. Miller

When a Living Will Is Not Honored: Revocations or Physician’s Conscience

A person can revoke a living will by writing or in any manner by which the person is able to communicate their intent to revoke in a clear and consistent manner. N.C.G.S. §90-321(e). Theoretically, this means that the person could verbally or physically revoke the living will without regard his or her mental or physical condition, though such instances are relatively rare.

By contrast, a health care agent may not revoke a declaration unless the health care power of attorney explicitly authorizes that revocation; though the agent may exercise any authority explicitly given to the health care agent in a living will. N.C.G.S. §90-321(e). So, unless the health care power of attorney and/or living will specifically allows the agent to revoke the living will, the agent cannot revoke the living will.

In no case, can a court appointed guardian revoke a living will. N.C.G.S. §90-321(e). However, the court can revoke a health care power of attorney. We will discuss this more later.

As you would expect, a health care provider has no liability for acting in accordance with a revoked declaration unless the medical personnel has “actual notice” of the revocation. N.C.G.S. §90-321(e). While the statute imposes no duty on the attending physician to verify a declaration's genuineness or validity, an attending physician may decline to honor a declaration if after reasonable inquiry there are reasonable grounds to question the genuineness or validity of a declaration. N.C.G.S. § 90-321(k)(2).

An attending physician may also decline to honor a declaration that expresses a desire of the declarant that life‑prolonging measures not be used if doing so would violate that physician's conscience or the conscience‑based policy of the facility at which the declarant is being treated. N.C.G.S. § 90-321(k)(1). However, if an attending physician declines to honor a declaration on these grounds they “must not interfere, and must cooperate reasonably,” with efforts to substitute an attending physician whose conscience would not be violated by honoring the declaration, or transfer the declarant to a facility that does not have policies in force that prohibit honoring the declaration.” Id. (emphasis added).