End-of-Life Health Care Planning

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Estate Planning Bulletin

02.01.2008

Meg D. Goldstein

On October 1, 2007, an “Act to Clarify the Rights to Make Advance Directives and to Designate Health Care Agents and to Improve and Simplify the Means of Making these Directives and Designations” became law in North Carolina. This law does not permit euthanasia or assisted suicide. Rather, the enacted statutes (1) permit you to require that your wishes be honored, rather than permitting them to be followed, (2) align terminology with current medical practices, (3) create more flexibility for you to make choices regarding end-of-life decisions, and (4) clarify ambiguities and inconsistencies that arose under the prior statutes. However, health care powers of attorney and living wills executed under the prior statutes are still valid and will continue to be honored.

Health care powers of attorney and living wills executed under the new law will override the old terms of “terminal and incurable,” “diagnosed to be in a persistent vegetative state,” “is permanently in a coma” or “suffers from severe dementia.” Rather than “life-sustaining procedures,” the new law encompasses “life-prolonging measures.” “Life-prolonging measures” is defined as the following.

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.

As under prior law, you may direct the administration or withholding of artificial nutrition and/or artificial hydration.

Under the new health care power of attorney statute, you may grant to your health care agent unlimited authority to make health care decisions on your behalf. On the other hand, you may freely limit your health agent’s authority by setting forth limitations in the health care power of attorney document.

The new statute sets forth three specific conditions under which you may direct the administration or withholding of life-prolonging measures. You may choose to specify that treatment (“life-prolonging measures”) shall, may or may not be withheld when any, some or all of the following conditions exist.

You have an incurable or irreversible condition that will result in your death within a relatively short period of time.
You become unconscious and, to a high degree of medical certainty, will never regain consciousness.
You suffer from 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.

The “shall” option may be one of the best improvement in the statutes. Although as a practical matter, the attending physician has the discretion to determine when the conditions have or have not been met, once the conditions have been satisfied, an attending physician will be able to rely on “shall” when family members have views different than those expressed in your health care power of attorney and living will. On the other hand, “shall” will provide family members with some leverage when an attending physician is vacillating regarding your particular medical condition.

In addition to end-of-life directions, a health care agent may now be authorized to make certain post-mortem decisions on your behalf if you have not made these decisions for yourself prior to your death. You may grant or withhold from your health care agent the powers to (1) authorize an autopsy, (2) consent to the donation of your tissue or organs for transplantation or therapy, (3) donate your body for anatomical study, and (4) direct the disposition of your remains -whether you are buried or cremated.

The beauty of the new statute is its inherent awareness of differing cultural and religious values in our society. Health care powers of attorney and living wills prepared under the new statute provide the flexibility to tailor the documents to your particular desires and wishes.

Advance directive documents, including a health care power of attorney and living will, inform health care providers what level of care you desire in specific situations. In addition to advance directives, the 2007 statute authorized a new instrument—a portable medical order, also known as a “MOST.” This is a medical order issued by a physician (or assistants or nurse practitioners under a physician’s supervision) that instructs health care providers what level of care to provide a patient. A MOST carries out your end-of-life wishes and must be signed by you or your health care agent or other representative. Because a MOST is not designed to be prepared in emergency situations, you need to discuss this with your primary physician as part of advance care planning, particularly when you are seriously ill, and it should be reviewed annually.

Many of us do not want to address end-of-life issues. Although we all want to die peacefully in our sleep, most of us will not have that luxury. The burden of making our end-of-life decisions cannot be left to our family and friends or the courts. We have all witnessed various court spectacles (Karen Ann Quinlan, Nancy Cruzan and Terri Schiavo). Many of us are aware of differences in beliefs and attitudes among our own family members. These differences may produce discord, temporarily and even permanently, among family members if we fail to provide our loved ones with written direction of our own desires and wishes. Furthermore, our failure to make our own decisions regarding how we want to die may cause guilt or anger in those who are forced to make these decisions for us. This author believes that end-of-life decisions should not be delegated to third parties. Because the law grants us the right to make these decisions for ourselves, we need to exercise our right to self-direct rather than leave the burden to others.

Physical Address: 301 Fayetteville Street, Suite 1900, Raleigh, NC 27601

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02.01.2008