Advance Healthcare Directives ensure that your medical wishes get the respect they deserve. These legal documents spell out your wishes when it comes to your care. But what if you’re not in North Carolina when a medical crisis strikes? The portability of advance healthcare directives becomes a vital concern.

In this blog, we’ll break down what you need to know about how North Carolina handles the portability of Advance Healthcare Directives so you can be prepared for emergency treatment, if needed, wherever you are.

What Are Advance Healthcare Directives?

Advance Healthcare Directives are legal documents that allow you to specify your healthcare wishes and preferences and appoint someone to make medical decisions on your behalf if you’re unable to do so. In North Carolina, these directives are often called an “Advance Directive for a Natural Death” or “Living Will.”

According to North Carolina General Statutes, Chapter 90, Article 23, an Advance Directive for a Natural Death is a document instructing healthcare providers to withhold or withdraw life-prolonging measures in certain situations.

The document is valid in any jurisdiction where presented. Still, it must be consistent with the requirements of the jurisdiction where it was created or consistent with North Carolina state law to be legally recognized and effective in our state.

For an Advance Directive to be legally binding when created in NC, it requires the following:

• Signed by you (the declarant)
• Witnessed by two qualified individuals
• Notarized

The witnesses must believe the declarant to be of sound mind and must not be related within the third degree to the declarant or the declarant’s spouse. Additionally, they should not have a claim against any portion of the estate of the declarant at the time of the declaration.

The notary public certifies the document, and while they may be a paid employee of the attending physician or a health facility where the declarant is a patient, it is not a requirement (§ 90-321).

Your Advance Directive can specify conditions under which life-prolonging measures should be withheld or discontinued. An example would be an incurable or irreversible condition where you become unconscious and will likely never regain consciousness. Another example would be suffering from advanced dementia or any other condition resulting in substantial loss of cognitive ability (§ 90-321).

Appointing a Health Care Power of Attorney (HCPOA)

In North Carolina, you can also appoint a power of attorney for healthcare through a separate document known as an HCPOA. This agent can make medical decisions for you if you’re unable to communicate your wishes. If you have both an Advance Directive and a healthcare power of attorney, you can specify which document takes precedence in case of conflicting instructions (§ 90-321).

If you have both an Advance Directive and a Healthcare Power of Attorney, North Carolina law allows you to specify which document takes precedence in case of conflicting instructions.

• If you initial the option “Follow Advance Directive,” then the Advance Directive will override any conflicting instructions from your healthcare agent.
• Conversely, if you initial “Follow Health Care Agent,” your healthcare agent has the authority to override the Advance Directive (§ 90-321).

It makes sense to discuss your healthcare wishes with the person you designate as your healthcare decision-maker to ensure they are willing and able to honor your directives.

It’s also crucial to consult an estate planning attorney to ensure that your Advance Healthcare Directives align with your wishes and comply with North Carolina law.

The Importance of HIPAA

The Health Insurance Portability and Accountability Act (HIPAA) safeguards your medical information. This federal law sets the standard for protecting sensitive patient data, ensuring only authorized individuals can access your medical records. HIPAA compliance is not just a legal obligation for healthcare providers; it’s a commitment to patient privacy and security.

HIPAA empowers you to control who sees your medical information and under what circumstances.

This is especially important when you have Advance Healthcare Directives and healthcare power of attorney. Your HIPAA documents ensure your designated healthcare decision-makers can access the information they need to make informed choices on your behalf.

Understanding and utilizing HIPAA rights can significantly enhance your healthcare experience and peace of mind.

The Basics of Advance Directives and Portability

When it comes to Advance Healthcare Directives, understanding their portability is crucial, especially if you travel or reside in multiple states.

In North Carolina, an Advance Directive for a Natural Death is intended to be valid in any jurisdiction where presented. However, it must be consistent with North Carolina law to be effective within the state (§ 90-321).

North Carolina recognizes Advance Directives or similar documents executed in other jurisdictions if they appear to meet the requirements of North Carolina (§ 90-321).

It’s essential to consult with an estate planning attorney to ensure your Advance Healthcare Directives are portable and comply with the laws of North Carolina and any other state where you may need medical care.

Keep in mind that while your Advance Directive is intended to be valid anywhere, healthcare providers in other states may have different requirements or interpretations of the law. Therefore, it’s advisable to have your directives reviewed if you move or spend significant time outside North Carolina.

You can check out this state directory of advance directives forms from EverPlans for frequent travel out-of-state.

Updating or Revoking Your Advance Healthcare Directives

Keeping your Advance Healthcare Directives up-to-date ensures others honor your medical wishes.

In North Carolina, you can revoke your Advance Directive for a Natural Death at any time. You can do this either by signing a written statement or by clearly and consistently communicating your intent to revoke the directive to your attending physician. (§ 90-321.1)

If you decide to revoke your Advance Directive, it’s advisable to destroy all document copies. You should also inform your healthcare providers, family, and anyone else with a copy to ensure that your new wishes are known and followed. (§ 90-321.1)

During specific emergency situations, such as a state of emergency declared by the Governor, North Carolina law may waive certain requirements for executing an Advance Directive. For example, the state may waive the requirement for two qualified witnesses. The state may allow a notary public’s acknowledgment to suffice. (§ 90-321.1)

An estate planning attorney ensures your Advance Healthcare Directives are current and legally binding. Given the importance of these directives for future care, regular reviews and updates are advisable. You’ll especially need to update your directives if your medical condition or personal wishes change.

Responsibilities and Liabilities of Healthcare Providers

In North Carolina, health care providers maintain specific responsibilities and liabilities for honoring Advance Healthcare Directives. They do not face liability to the patient, their family, estate, heirs, or personal representatives for following Advance Directives.

Following the directives is not any of the following in North Carolina:

• Assisted suicide
• Causing death
• Malpractice
• Unprofessional conduct

Moreover, if the patient has revoked the directive, but the healthcare providers are unaware of the revocation and act in good faith, they are still entitled to the same protections as if the directive had not been revoked (§ 90-321.1).

An attending physician may decline to honor a declaration if there are grounds to question the validity of the declaration. The law imposes no duty on the attending physician to verify the declaration’s validity (§ 90-321).

It’s crucial for patients to keep their healthcare providers informed about any changes to their Advance Healthcare Directives. This helps healthcare providers make informed treatment decisions aligning with the patient’s wishes.

Role of Family Members in Advance Healthcare Directives

Family members matter regarding Advance Healthcare Directives, particularly if you become unable to communicate healthcare decisions.

What if none of your designated healthcare agents are reasonably available? The attending physician may then withhold life-prolonging measures with direction from a majority of the patient’s reasonably available parents and children. These family members must be at least 18. The same applies to a majority of the patient’s reasonably available siblings who are at least 18 or someone with an established relationship who can convey the patient’s wishes.  (§ 90-321).

It’s crucial to discuss your healthcare wishes with your family members to help them stay aware of your directives and act in your best interest.

If your healthcare agent gives instructions that differ from your Advance Directive, you can specify which should take precedence. If you don’t make this specification, health care providers will follow the Advance Directive and ignore the instructions of your healthcare agent. (§ 90-321).

Given the significant role family members can play, it’s advisable to inform them about future medical treatments. You can even provide them with copies of your Advance Healthcare Directives. In the absence of a healthcare agent, your family members can make informed decisions aligning with your wishes.

Always consult an estate planning attorney to fully understand how family members fit into the legal landscape of Advance Healthcare Directives in North Carolina.

Advanced Health Care Directive Registry in North Carolina

In North Carolina, you can file your healthcare wishes with the Advanced Health Care Directive Registry maintained by the NC Secretary of State. The NCSOS Registry is a centralized location where healthcare providers can access your directives in case of an emergency (§ 90-321).

Filing your Advance Directive in this registry ensures that healthcare providers can quickly and easily access your medical wishes. Filing with the registry can reduce errors or delays in your medical treatment. It’s a good idea to inform your healthcare providers, family, and healthcare agent about the existence and location of your registered Advance Directive. This ensures that everyone involved in your care knows where to find these crucial documents. (§ 90-321)

If you decide to update or revoke your Advance Directive, remember to update the information in the registry as well. This ensures that healthcare providers will always have access to your most current wishes regarding healthcare. (§ 90-321)

Consult an estate planning attorney to guide you through the process of updating or revoking your Advance Directive. This extra step provides an additional layer of security, ensuring that your healthcare wishes are honored.

Penalties and Consequences for Non-Compliance of Health Care Providers

In North Carolina, healthcare providers are protected from liability when they follow the instructions in an Advance Directive. They are not liable to the patient, their family, estate, heirs, or personal representatives for following these instructions.

However, the law does not explicitly state consequences for healthcare providers who do not comply with an Advance Directive. It does mention that an attending physician may decline to honor a declaration if reasonable grounds exist to question its validity. However, it imposes no duty on the attending physician to verify the declaration’s genuineness or validity. (§ 90-321)

Given the absence of explicit penalties in the law, it’s crucial for patients to carefully plan. Ensure your Advance Healthcare Directives are clear, legally binding, and readily accessible to healthcare providers. Consult an estate planning attorney to understand your full scope of responsibilities under North Carolina law.

We Can Help With Advance Care Planning for Your Future

At Vail Gardner Law, our experienced estate planning attorneys understand the complexities and sensitivities involved in your advance care planning documents. We’re here to guide you through every step of creating or updating your Advance Healthcare Directives, ensuring they align with North Carolina laws.

From the role of family members to the responsibilities of healthcare providers, we cover all the bases to ensure your end-of-life decisions are honored.

Our team is committed to providing you with the peace of mind you deserve. Don’t leave your healthcare decision-making to chance. Contact Vail Gardner Law today to secure your future and ensure your wishes are legally protected.