In North Carolina, the topic of advance directives often raises questions, especially regarding legal requirements for validity. One question that frequently comes up is, “Does an Advance Directive Need to be Notarized in North Carolina?”

Understanding the answer to this question is crucial for anyone looking to take control of their medical decisions. Advance directives help you in the event you can’t communicate your wishes. In this blog, we’ll define what advance directives are and see whether they legally need to be notarized. We’ll also learn what other legal documents can help if you can’t make decisions on your own behalf.

What is an Advance Directive?

An advance directive is a set of instructions you provide about the medical and mental health care you want if you ever lose the ability to make decisions for yourself. In North Carolina, there are three primary ways to create a formal advance directive:

Living Will

A living will is a legal document that specifies your wishes for end-of-life medical treatment. It goes into effect when your physician and another physician determine that you meet one of the conditions specified in the living will. Conditions may include the following:

• Being incurably sick with an irreversible condition
• Being unconscious with little chance of regaining consciousness
• Having advanced dementia that is unlikely to be reversed

Health Care or Medical Power of Attorney

A medical power of attorney lets you appoint a trusted adult as your healthcare agent. This person can make medical and mental health decisions for you if you can’t make them yourself. The power of attorney goes into effect when a physician states in writing you are incapable of communicating your health care choices.

Advance Instruction for Mental Health Treatment

Advance directives outline your preferences for mental health treatments that you would want and not want if you can’t make decisions for yourself. It goes into effect when your physician or an eligible psychologist determines you can’t make mental health care decisions.

Making an advance directive is your choice. If you don’t have one and can’t make your own decisions, your provider will consult with someone close to you about your care. It’s strongly encouraged to discuss your wishes for medical and mental health treatment with your family and friends. Your plans now ensure you receive the level of treatment you desire if you can no longer express your wishes. (1)

In the next section, we’ll explore the legal requirements for making these documents valid in North Carolina.

Legal Requirements for Advance Directives in North Carolina

Creating a valid advance directive in NC requires legal adherence to ensure clarity for healthcare providers. The following conditions must be met for an advance directive to be legally recognized:

Written and Signed

The advance directive must be written and signed by you while you can still make and communicate healthcare decisions.

Witnessed by Qualified Adults

Two qualified adults must witness the document. A qualified witness is a competent adult who sees you sign the document, is not a relative, and will not inherit anything from you upon your death. The witness cannot be your physician, a licensed employee of your physician or mental health providers, or any paid employee of a healthcare facility where you live or that is treating you.

Notarized

The advance directive must be notarized to be legally binding. This is crucial for healthcare providers who may need to rely on this document to make decisions about your care.

Notarizing your advance directive adds an extra layer of credibility to the document. It confirms that you were of sound mind when you signed it, which can be particularly important if there are disputes among family members or healthcare providers about your wishes.

Notarization can also make your advance directive easier to accept in other states if you require medical care outside of North Carolina.

Following these legal requirements ensures that others will honor your advance directive in North Carolina. In the next section, we’ll guide you through the steps to create an advance directive in North Carolina.

How to Create an Advance Directive in North Carolina

Creating an advance directive in NC ensures your wishes are clear to healthcare providers.

Written and Signed

First, you must write down your wishes as an advance directive. You can find a template on the NC Secretary of State’s Website. You must sign this document while still capable of making healthcare decisions.

Witnesses

Next, you’ll need two qualified adults to witness you signing the document. A qualified witness is a competent adult who is not a relative and will not inherit anything from you on your death.

Additionally, the witness cannot be your physician, a licensed employee of your physician or mental health providers, or any paid employee of a healthcare facility where you live or who is treating you.

Notarization

Lastly, the document must be notarized to be legally binding. This essential step adds an extra layer of verification and credibility to your advance directive.

Forms

You can obtain forms for living wills, health care powers of attorney, and advance instructions for mental health treatment from the North Carolina Secretary of State website. These forms meet all the rules for a formal advance directive.

Storage

Once you’ve completed these steps, keep a copy of your advance directive in a safe place where your family members can access it. It’s also a good idea to give copies to your family, physician or mental health providers, and healthcare agent(s).

Following these steps ensures that your advance directive is legally valid and that others will honor your wishes in North Carolina. In the next section, we’ll discuss frequently asked questions about advance directives.

Frequently Asked Questions About Advance Directives

Changing Your Mind

You have the flexibility to cancel or change your advance directive. For instance, you can cancel your living will at any time by communicating your intent in any way. Similarly, you can cancel or change your healthcare power of attorney while you can still make and communicate your decisions. You can also cancel your advance instruction for mental health treatment by informing your physician or mental health provider.

Who is a Qualified Witness?

A qualified witness is a competent adult who is not a relative and will not inherit anything from you upon your death. The witness also cannot be your physician, a licensed employee of your physician or mental health providers, or any paid employee of a healthcare facility where you live or are receiving treatment.

Where to Keep Your Advance Directive

It’s recommended to keep a copy of your advance directive in a safe place where your family members can access it. You should also give copies to your family, physician or mental health providers, and healthcare agent(s). In addition, the Secretary of State Website will store your advance directive once you’ve created it.

Forms

Forms for advance directives can be obtained from the North Carolina Secretary of State website. These forms meet all the rules for a formal advance directive.

By understanding these frequently asked questions, you can make more informed decisions about your healthcare and ensure that your wishes are honored. In the next section, we’ll discuss additional forms and options you may want to consider.

Additional Forms and Options to Consider

Authorization to Consent to Health Care for a Minor

This legal document allows parents with sole or joint legal custody of a minor to authorize another adult to make certain healthcare decisions for their child or children in their absence.

Organ Donor Card

An Organ Donor Card is a document that allows you to donate your organs. You can become an organ donor by expressing your desire in your will or by authorizing the NC Division of Motor Vehicles to put an organ donor symbol on your driver’s license.

Portable Do Not Resuscitate (DNR) Orders

A Portable DNR Order is a medical order that emergency medical responders or other health care providers can follow. It tells them not to attempt cardiopulmonary resuscitation (CPR) if your heart and breathing stop.

Medical Order for Scope of Treatment (MOST)

A MOST form contains CPR instructions and addresses other end-of-life treatments you may or may not want to receive. Like a Portable DNR Order, it is a medical order that your physician must sign.

HIPAA

The Health Insurance Portability and Accountability Act (HIPAA) is a federal law that protects the privacy and security of individuals’ medical records and other personal health information. While HIPAA is designed to safeguard your medical information, it also includes provisions that allow sharing this information for patient care purposes.

For instance, if you have an advance directive, HIPAA regulations would permit healthcare providers to share that directive with other medical professionals to ensure that your healthcare wishes are honored, provided such sharing complies with the law. Understanding HIPAA can help you better navigate the healthcare system and protect your privacy.

These additional forms and options can provide a more comprehensive approach to your healthcare planning.

Vail Gardner Law Can Help You Plan For Your Future Medical Care

At Vail Gardner Law, our experienced estate planning attorneys help ensure you have a say in future medical treatment. With a medical power of attorney, advance directives, living will, and other arrangements, you can ensure the life-sustaining treatment you may need and also refuse the treatments you do not desire.

We guide you through the applicable North Carolina laws, ensuring that your documents are legally sound and reflect your wishes accurately. Our team is here to answer all your questions, address any concerns, and provide the peace of mind that comes from knowing others will respect your healthcare choices. Don’t leave your future to chance; let Vail Gardner Law help you take control of your medical decisions today.