Unlike a living will, which only applies when you have been diagnosed as having a terminal and incurable illness, being in a persistent vegetative state or having advanced dementia, a healthcare power of attorney applies in any case where you are unable to make medical decisions, such as when you are temporarily incapacitated or seriously ill. Having both a living will and a healthcare power of attorney can assist your agent in carrying out your wishes.
A healthcare power of attorney may include within it a living will and/or an advanced instruction for mental health treatment.
Living will—declaring a desire for a natural death
A living will is a legal document which informs your doctors of your wishes regarding life-sustaining procedures when you are not able to communicate them yourself. Often, a living will is used to let health care providers know that you do not want your life prolonged by extraordinary measures in the event you have been diagnosed with a terminal and incurable illness, a persistent vegetative state or advanced dementia.
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In North Carolina, for a living will to become effective it must be determined by medical professionals that you do not have the capacity to make your own healthcare decisions. In addition, your doctor and at least one other doctor must determine that you have a terminal and incurable condition, are in a persistent vegetative state or have advanced dementia. They must also have a copy of your living will.
A living will executed in North Carolina may not be valid in another state because living will laws differ in virtually every state that has such laws. Even with a living will, it is very important for you to discuss your wishes with your family to be sure they understand what you want in the event you can no longer speak for yourself. Without a living will, if your doctor or healthcare facility is unsure of what action to take, or if your family members cannot agree, the courts will decide in a process that can take years to resolve; therefore, it is best not to leave this issue open for dispute.
Advanced instruction for mental health treatment
An advanced instruction for mental health treatment allows you to give instructions and preferences regarding mental health treatment. Mental health treatment is defined by law as the process of providing for the physical, emotional, psychological and social needs of the principal (patient) for the principal’s mental illness. Mental health treatment includes, but is not limited to, electroconvulsive treatment, treatment of mental illness with psychotropic medication and admission to and retention in a facility for care or treatment of mental illness. The advanced instruction may include—
- Consent to, or refusal of, mental health treatment
- Names and telephone numbers of individuals to be contacted in case of a mental health crisis
- Situations that may cause the principal to experience a mental health crisis
- Responses that may assist the principal to remain in the principal’s home during a mental health crisis
- The types of assistance that may help stabilize the principal if it becomes necessary to enter a facility
- Medications that the principal is taking or has taken in the past and the effects of those medications
The advanced instruction for mental health treatment is designed for people who have mental illnesses such as paranoia, schizophrenia or a bi-polar disorder. It is not designed for people who may be experiencing mental health problems associated with aging, such as Alzheimer’s disease or dementia. People who are concerned with these types of mental health issues may only need to utilize a healthcare power of attorney—which does not automatically include an advanced instruction for mental health treatment—to express their preferences for mental healthcare treatment.
Advance medical directives allow you, while you are mentally alert and competent, to state in which specific situations you do or do not wish certain medical interventions performed. It is not possible to foresee all the situations that may occur, but stating your wishes for some situations is a helpful guide for those who will be making decisions about your care. The power to execute a medical directive derives from your virtually unlimited right as a mentally alert and competent adult to refuse medical treatment. A medical directive is not a legal document, but it is evidence of decisions you made while you were competent for use in times when you no longer have the capacity to make decisions for yourself. This information regarding how you feel about certain medical procedures can assist those who are trying to help you toward the end of your life.
If you wish your medical directive to have the force of a legal document, you must make it a part of the section regarding special provisions and limitations in your health care power of attorney.
If you have questions about any health care documents, advance medical directives or other ways to ensure your wishes are carried out, contact an experience attorney.