In part one of our three-part estate planning series, we discussed how to provide for the disposition of property upon death, with a particular emphasis on the importance of testamentary wills and the value of trusts to the estate planning process. Despite their importance, however, wills and trusts are still uncommon—as the majority of Americans do not have an effective estate planning document. Plans and documents aimed at addressing one’s last wishes while one is still alive are similarly overlooked. However, in addition to executing a proper document to detail the disposition of property once you’ve passed, you can execute documents that detail your final wishes regarding your end-of-life care. The death of a loved one is already stressful and it can be made more stressful by the tough decisions regarding care in one’s final hours. With the proper planning and documents, however, you can help to alleviate this added stress on your loved ones.
WHAT ARE ADVANCE DIRECTIVES?
Advance Directives are documents that give instructions about a person’s health care and/or appoints someone to make medical treatment decisions for a person if they cannot make them for themselves. In North Carolina, the default rule is that an attending physician may make treatment decisions for you with consent from your spouse or next of kin. In the case of terminal illness or permanent unconsciousness, an attending physician can make the decision to withdraw or withhold life-prolonging measures after consulting with the guardian, attorney-in-fact, spouse, or next of kin. However, Advance Directives override the default rules, are legally binding, and doctors must follow them. If a doctor objects to the treatment decision in an Advance Directive, he or she has an obligation to transfer your care to a doctor who will comply with the Advance Directive. In North Carolina, there are two forms of Advance Directives: (1) the Living Will—also called the Advance Directive for a Natural Death; and (2) the Health Care Power of Attorney.
LIVING WILL (ADVANCE DIRECTIVE FOR A NATURAL DEATH)
The Living Will is used to state one’s wishes about life-sustaining medical treatment in three particular scenarios: (1) if you are terminally ill and will die in a relatively short time; (2) if you are permanently unconscious; or (3) if you are suffering from advanced dementia or any other condition which results in substantial loss of your cognitive ability and the loss is not reversible. If you are in one or more of the three scenarios listed above, the Living Will can be used to authorize the withholding or withdrawal of life-prolonging measures (e.g., ventilation, dialysis, artificial nutrition and hydration, etc.,) that only serve to delay death.
NOTE: Although it is called a will, the Living Will is entirely separate and distinct from the Testamentary Wills discussed in the previous post in this series. Whereas the Living Will deals with end-of-life decisions for a person who is still alive, a Testamentary Will pertains to disposition of a person’s property upon death.
HEALTH CARE POWER OF ATTORNEY
A Health Care Power of Attorney allows you to appoint another person (often a spouse, guardian, child, or other family member) to make medical treatment decisions for you in the event that you cannot make them for yourself. Note that the Health Care Power of Attorney is broader than the Living Will. The Health Care Power of Attorney relates to all medical treatment decisions. In contrast, the Living Will only applies to cessation of life-prolonging treatment under a narrow set of circumstances. Additionally, the Health Care Power of Attorney is more flexible, as the decision-making power is transferred to another person who can make real-time decisions instead of relying on the Living Will’s pre-made decisions that might not have considered the circumstances of a particular situation. Because of that breadth and flexibility, the Health Care Power of Attorney tends to be a more attractive option as an Advance Directive. A Health Care Power of Attorney can even include specific instructions for decision-making and can reference and incorporate medical guidelines. This can be particularly useful for people who wish to exclude certain forms of treatment for religious, moral, ethical, or any other reason. It is important to note that Health Care Powers of Attorney are only activated once it is medically determined that a person is no longer competent to make their own decisions. Thus, even if you have executed a Health Care Power of Attorney, you may still dictate your own medical choices. It is only when/if you become incompetent that the Health Care Power of Attorney shifts decision-making authority to your Health Care Agent.
As a final note, while the Health Care Power of Attorney is often seen as the more attractive option between the two Advance Directives, there is nothing that prohibits a person from executing both documents. As discussed above, the two documents operate in somewhat different spheres, with the Health Care Power of Attorney slightly overlapping with the Living Will. Indeed, having a Living Will in place can help your Health Care Agent properly exercise the authority given to them by the Health Care Power of Attorney. It is crucial, however, that the two documents do not conflict with each other in regard to one’s final wishes.
REQUIREMENTS FOR AN ADVANCE DIRECTIVE
The requirements for a valid Advance Directive are straightforward and similar to the requirements for a valid Testamentary Will. First, the Advance Directive must be signed and dated. Second, it must be witnessed by two witnesses. The witnesses cannot be relatives or heirs to the signor, nor can they hold any other claim against the signor. Additionally, they cannot be health care providers or employees of health care providers. Finally, it must be notarized.
WHAT SHOULD I DO WITH MY ADVANCE DIRECTIVE?
The North Carolina Bar Association recommends providing a copy of your Advance Directive to your family physician, attorney, spouse, or trust family members. Additionally, a copy of a signed Health Care Power of Attorney should be given to the person designated as the Health Care Agent. Safety deposit boxes and other bank lock boxes are specifically discouraged for these types of documents. Another great option for safe keeping is to file your Advance Directive with the Advance Health Care Directive Registry that is maintained by the North Carolina Secretary of State. The key is that the Advance Directive should be available and readily accessible, as it does the signor no good if it cannot be found quickly.
This is part two of a three-part estate planning series. In part one, we discussed how to plan for disposition of assets upon death through wills and trusts. In part three, we will provide tips on how to have these difficult discussions with family members.