GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 2007

 

 

HOUSE BILL 634

RATIFIED BILL

 

 

AN ACT TO CLARIFY THE RIGHT TO MAKE ADVANCE DIRECTIVES AND TO DESIGNATE HEALTH CARE AGENTS; AND TO IMPROVE AND SIMPLIFY THE MEANS OF MAKING THESE DIRECTIVES AND DESIGNATIONS.

 

The General Assembly of North Carolina enacts:

 

SECTION 1.  G.S. 32A-15(c) reads as rewritten:

"(c)      This Article is intended and shall be construed to be consistent with the provisions of Article 23 of Chapter 90 of the General Statutes provided that in the event of a conflict between the provisions of this Article and Article 23 of Chapter 90, the provisions of Article 23 of Chapter 90 control. No conflict between these Chapters exists when either a health care power of attorney or a declaration provides that the declaration is subject to decisions of a health care agent. If no declaration has been executed by the principal as provided in G.S. 90-321 that expressly covers the principal's present condition and if the health care agent has been given the specific authority in a health care power of attorney to authorize the withholding or discontinuing of life-sustaining procedures when the principal is in the present condition, these procedures life-prolonging measures when the principal is in such condition, the measures may be withheld or discontinued as provided in the health care power of attorney upon the direction and under the supervision of the attending physician. In this case, G.S. 90-322 does not apply.physician, as G.S. 90-322 shall not apply in such case. Nothing in this Article shall be construed to authorize any affirmative or deliberate act or omission to end life other than to permit the natural process of dying."

SECTION 2.  G.S. 32A-16 reads as rewritten:

" 32A-16.  Definitions.

As used in this Article, unless the context clearly requires otherwise, the following terms have the meanings specified:The following definitions apply in this Article:

(1)       "Disposition of remains" means the Disposition of remains. - The decision to bury or cremate human remains as remains, as human remains are defined in G.S. 90-210.121(17).90-210.121, and, subject to G.S. 32A-19(b), arrangements relating to burial or cremation.

(1a)     "Health care" means any Health care. - Any care, treatment, service, or procedure to maintain, diagnose, treat, or provide for the principal's physical or mental health or personal care and comfort including, life-sustaining procedures.including life-prolonging measures. "Health care" includes mental health treatment as defined in subdivision (8) of this section.

(2)       "Health care agent" means the Health care agent. - The person appointed as a health care attorney-in-fact.

(3)       "Health care power of attorney" means a Health care power of attorney. - A written instrument,instrument that substantially meets the requirements of this Article, that is signed in the presence of two qualified witnesses, and acknowledged before a notary public, pursuant to which an attorney-in-fact or agent is appointed to act for the principal in matters relating to the health care of the principal, and which substantially meets the requirements of this Article.principal. The notary who takes the acknowledgement may but is not required to be a paid employee of the attending physician or mental health treatment provider, a paid employee of a health facility in which the principal is a patient, or a paid employee of a nursing home or any adult care home in which the principal resides.

(4)       "Life-sustaining procedures" are those forms of care or treatment which only serve to artificially prolong the dying process and may include mechanical ventilation, dialysis, antibiotics, artificial nutrition and hydration, and other forms of treatment which sustain, restore or supplant vital bodily functions, but do not include care necessary to provide comfort or to alleviate pain.Life-prolonging measures. - 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.

(5)       "Principal" means the Principal. - The person making the health care power of attorney.

(6)       "Qualified witness" means a Qualified witness. - A witness in whose presence the principal has executed the health care power of attorney, who believes the principal to be of sound mind, and who states that he or she (i) is not related within the third degree to the principal nor to the principal's spouse, (ii) does not know nor have a reasonable expectation that he or she would be entitled to any portion of the estate of the principal upon the principal's death under any existing will or codicil of the principal or under the Intestate Succession Act as it then provides, (iii) is not the attending physician or mental health treatment provider of the principal, nor an a licensed health care provider who is a paid employee of the attending physician or mental health treatment provider, nor an a paid employee of a health facility in which the principal is a patient, nor an a paid employee of a nursing home or any group-care adult care home in which the principal resides, and (iv) does not have a claim against any portion of the estate of the principal at the time of the principal's execution of the health care power of attorney.

(7)       "Advance instruction for mental health treatment" or "advance instruction" means a written instrument as defined in G.S. 122C-72(1) pursuant to which the principal makes a declaration of instructions, information, and preferences regarding mental health treatment.Advance instruction for mental health treatment or advance instruction. - As defined in G.S. 122C-72(1).

(8)       "Mental health treatment" means the Mental health treatment. - The process of providing for the physical, emotional, psychological, and social needs of the principal for the principal's mental illness. "Mental health treatment" includes, but is not limited to, includes electroconvulsive treatment, treatment of mental illness with psychotropic medication, and admission to and retention in a facility for care or treatment of mental illness."

SECTION 3.  G.S. 32A-19(a), (a1), and (b) read as rewritten:

" 32A-19.  Extent of authority; limitations of authority.

(a)       A principal, pursuant to a health care power of attorney, may grant to the health care agent full power and authority to make health care decisions to the same extent that the principal could make those decisions for himself or herself if he or she had understanding and capacity to make and communicate health care decisions, including without limitation, the power to authorize withholding or discontinuing life-sustaining procedures life-prolonging measures and the power to authorize the giving or withholding of mental health treatment. A health care power of attorney may also contain or incorporate by reference any lawful guidelines or directions relating to the health care of the principal as the principal deems appropriate.

(a1)     A health care power of attorney may incorporate or be combined with an advance instruction for mental health treatment prepared pursuant to Part 2 of Article 3 of Chapter 122C of the General Statutes. A health care agent's decisions about mental health treatment shall be consistent with any statements the principal has expressed in an advance instruction for mental health treatment if one so exists, and if none exists, shall be consistent with what the agent believes in good faith to be the manner in which the principal would act if the principal did not lack sufficient understanding or capacity to make or communicate health care decisions. A health care agent is not subject to criminal prosecution, civil liability, or professional disciplinary action for any action taken in good faith pursuant to an advance instruction for mental health treatment.

(b)       A health care power of attorney may authorize the health care agent to exercise any and all rights the principal may have with respect to anatomical gifts, the authorization of any autopsy, and the disposition of remains.remains; provided this authority is limited to incurring reasonable costs related to exercising these powers, and a health care power of attorney does not give the health care agent general authority over a principal's property or financial affairs."

SECTION 4.  G.S. 32A-22(a) reads as rewritten:

"(a)      If, following the execution of a health care power of attorney, a court of competent jurisdiction appoints a guardian of the person of the principal, or a general guardian with powers over the person of the principal, the guardian may petition the court, after giving notice to the health care agent, to suspend the authority of the health care agent during the guardianship. The court may suspend the authority of the health care agent for good cause shown, provided that the court's order must direct whether the guardian shall act consistently with the health care power of attorney or whether and in what respect the guardian may deviate from it. Any order suspending the authority of the health care agent must set forth the court's findings of fact and conclusions of law.the health care power of attorney shall cease to be effective upon the appointment and qualification of the guardian. The guardian shall act consistently with G.S. 35A-1201(a)(5). A health care provider shall be fully protected from liability in relying on a health care power of attorney until given actual  notice of the court's order suspending the authority of the health care agent."

SECTION 5.(a)  G.S. 32A-24(c) reads as rewritten:

" 32A-24.  Reliance on health care power of attorney; defense.

"(c)      The withholding or withdrawal of life-sustaining procedures life-prolonging measures by or under the orders of a physician pursuant to the authorization of a health care agent shall not be considered suicide or the cause of death for any civil or criminal purpose nor shall it be considered unprofessional conduct or a lack of professional competence. Any person, institution or facility, including without limitation the health care agent and the attending physician, against whom criminal or civil liability is asserted because of conduct described in this section, may interpose this section as a defense."

SECTION 5.(b)  G.S. 32A-24 is amended by adding the following new subsection to read:

"(d)      The protections of this section extend to any valid health care power of attorney, including a document valid under G.S. 32A-27; these protections are not limited to health care powers of attorney prepared in accordance with the statutory form provided in G.S. 32A-25.1, or to health care powers of attorney filed with the Advance Health Care Directive Registry maintained by the Secretary of State. A health care provider may rely in good faith on an oral or written statement by legal counsel that a document appears to meet applicable statutory requirements for a health care power of attorney. These protections also extend to a document executed in another jurisdiction that is valid as a health care power of attorney under G.S. 32A-27. A health care provider shall have no liability for acting in accordance with a revoked health care power of attorney unless that provider has actual notice of the revocation."

SECTION 6.(a)  G.S. 32A-25 is repealed.

SECTION 6.(b)  Article 3 of Chapter 32A of the General Statutes is amended by adding the following new section to read:

" 32A-25.l.  Statutory form health care power of attorney.

(a)       The use of the following form in the creation of a health care power of attorney is lawful and, when used, it shall meet the requirements of and be construed in accordance with the provisions of this Article:

 

HEALTH CARE POWER OF ATTORNEY

 

NOTE:  YOU SHOULD USE THIS DOCUMENT TO NAME A PERSON AS YOUR HEALTH CARE AGENT IF YOU ARE COMFORTABLE GIVING THAT PERSON BROAD AND SWEEPING POWERS TO MAKE HEALTH CARE DECISIONS FOR YOU. THERE IS NO LEGAL REQUIREMENT THAT ANYONE EXECUTE A HEALTH CARE POWER OF ATTORNEY.

 

EXPLANATION:  You have the right to name someone to make health care decisions for you when you cannot make or communicate those decisions. This form may be used to create a health care power of attorney, and meets the requirements of North Carolina law. However, you are not required to use this form, and North Carolina law allows the use of other forms that meet certain requirements. If you prepare your own health care power of attorney, you should be very careful to make sure it is consistent with North Carolina law.

 

This document gives the person you designate as your health care agent broad powers to make health care decisions for you when you cannot make the decision yourself or cannot communicate your decision to other people. You should discuss your wishes concerning life-prolonging measures, mental health treatment, and other health care decisions with your health care agent. Except to the extent that you express specific limitations or restrictions in this form, your health care agent may make any health care decision you could make yourself.

 

This form does not impose a duty on your health care agent to exercise granted powers, but when a power is exercised, your health care agent will be obligated to use due care to act in your best interests and in accordance with this document.

 

This Health Care Power of Attorney form is intended to be valid in any jurisdiction in which it is presented, but places outside North Carolina may impose requirements that this form does not meet.

 

If you want to use this form, you must complete it, sign it, and have your signature witnessed by two qualified witnesses and proved by a notary public. Follow the instructions about which choices you can initial very carefully. Do not sign this form until two witnesses and a notary public are present to watch you sign it. You then should give a copy to your health care agent and to any alternates you name. You should consider filing it with the Advance Health Care Directive Registry maintained by the North Carolina Secretary of State: http://www.nclifelinks.org/ahcdr/

 

1.   Designation of Health Care Agent.

 

I, __________________, being of sound mind, hereby appoint the following person(s) to serve as my health care agent(s) to act for me and in my name (in any way I could act in person) to make health care decisions for me as authorized in this document. My designated health care agent(s) shall serve alone, in the order named.

 

A.        Name:     _______________________    Home Telephone:      _______________

Home Address:  _______________________    Work Telephone:      _______________

____________________________________   Cellular Telephone: _______________

 

B.        Name:     _______________________    Home Telephone:      _______________

Home Address:  _______________________    Work Telephone:      _______________

____________________________________   Cellular Telephone: _______________

 

C.        Name:     _______________________    Home Telephone:      _______________

Home Address:  _______________________    Work Telephone:      _______________

____________________________________   Cellular Telephone: _______________

 

Any successor health care agent designated shall be vested with the same power and duties as if originally named as my health care agent, and shall serve any time his or her predecessor is not reasonably available or is unwilling or unable to serve in that capacity.

 

2.   Effectiveness of Appointment.

 

My designation of a health care agent expires only when I revoke it. Absent revocation, the authority granted in this document shall become effective when and if one of the physician(s) listed below determines that I lack capacity to make or communicate decisions relating to my health care, and will continue in effect during that incapacity, or until my death, except if I authorize my health care agent to exercise my rights with respect to anatomical gifts, autopsy, or disposition of my remains, this authority will continue after my death to the extent necessary to exercise that authority.

 

1.   _______________________  (Physician)

 

2.   _______________________  (Physician)

 

If I have not designated a physician, or no physician(s) named above is reasonably available, the determination that I lack capacity to make or communicate decisions relating to my health care shall be made by my attending physician.

 

3.   Revocation.

 

Any time while I am competent, I may revoke this power of attorney in a writing I sign or by communicating my intent to revoke, in any clear and consistent manner, to my health care agent or my health care provider.

 

4.   General Statement of Authority Granted.

 

Subject to any restrictions set forth in Section 6 below, I grant to my health care agent full power and authority to make and carry out all health care decisions for me. These decisions include, but are not limited to:

 

A.        Requesting, reviewing, and receiving any information, verbal or written, regarding my physical or mental health, including, but not limited to, medical and hospital records, and to consent to the disclosure of this information.

 

B.        Employing or discharging my health care providers.

 

C.        Consenting to and authorizing my admission to and discharge from a hospital, nursing or convalescent home, hospice, long-term care facility, or other health care facility.

 

D.        Consenting to and authorizing my admission to and retention in a facility for the care or treatment of mental illness.

 

E.         Consenting to and authorizing the administration of medications for mental health treatment and electroconvulsive treatment (ECT) commonly referred to as "shock treatment."

 

F.         Giving consent for, withdrawing consent for, or withholding consent for, X-ray, anesthesia, medication, surgery, and all other diagnostic and treatment procedures ordered by or under the authorization of a licensed physician, dentist, podiatrist, or other health care provider. This authorization specifically includes the power to consent to measures for relief of pain.

 

G.        Authorizing the withholding or withdrawal of life-prolonging measures.

 

H.        Providing my medical information at the request of any individual acting as my attorney-in-fact under a durable power of attorney or as a Trustee or successor Trustee under any Trust Agreement of which I am a Grantor or Trustee, or at the request of any other individual whom my health care agent believes should have such information. I desire that such information be provided whenever it would expedite the prompt and proper handling of my affairs or the affairs of any person or entity for which I have some responsibility. In addition, I authorize my health care agent to take any and all legal steps necessary to ensure compliance with my instructions providing access to my protected health information. Such steps shall include resorting to any and all legal procedures in and out of courts as may be necessary to enforce my rights under the law and shall include attempting to recover attorneys' fees against anyone who does not comply with this health care power of attorney.

 

I.          To the extent  I have not already made valid and enforceable arrangements during my lifetime that have not been revoked, exercising any right I may have to authorize an autopsy or direct the disposition of my remains.

 

J.         Taking any lawful actions that may be necessary to carry out these decisions, including, but not limited to: (i) signing, executing, delivering, and acknowledging any agreement, release, authorization, or other document that may be necessary, desirable, convenient, or proper in order to exercise and carry out any of these powers; (ii) granting releases of liability to medical providers or others; and (iii) incurring reasonable costs on my behalf related to exercising these powers, provided that this health care power of attorney shall not give my health care agent general authority over my property or financial affairs.

 

5.   Special Provisions and Limitations.

 

(Notice:  The authority granted in this document is intended to be as broad as possible so that your health care agent will have authority to make any decisions you could make to obtain or terminate any type of health care treatment or service. If you wish to limit the scope of your health care agent's powers, you may do so in this section. If none of the following are initialed, there will be no special limitations on your agent's authority.)

 

                                    A.     Limitations about Artificial Nutrition or Hydration: In exercising the authority to make health care decisions on my behalf, my health care agent:

______________              shall NOT have the authority to withhold artificial nutrition
         (Initial)                       (such as through tubes) OR may exercise that authority only
                                             in accordance with the following special provisions:

__________________________________________________

__________________________________________________

 

______________              shall NOT have the authority to withhold artificial hydration
         (Initial)                       (such as through tubes) OR may exercise that authority only
                                             in accordance with the following special provisions:

__________________________________________________

__________________________________________________

 

NOTE:  If you initial either block but do not insert any special provisions, your health care agent shall have NO AUTHORITY to withhold artificial nutrition or hydration._________________________________________

 

______________     B.     Limitations Concerning Health Care Decisions. In exercising
         (Initial)                       the authority to make health care decisions on my behalf, the
                                             authority of my health care agent is subject to the following
                                             special provisions: (Here you may include any specific
                                             provisions you deem appropriate such as:  your own definition
                                             of when life-prolonging measures should be withheld or
                                             discontinued, or instructions to refuse any specific types of
                                             treatment that are inconsistent with your religious beliefs, or
                                             are unacceptable to you for any other reason.)

__________________________________________________

__________________________________________________

NOTE:  DO NOT initial unless you insert a limitation.___

 

______________     C.     Limitations Concerning Mental Health Decisions. In
         (Initial)                       exercising the authority to make mental health decisions on
                                             my behalf, the authority of my health care agent is subject to
                                             the following special provisions: (Here you may include any
                                             specific provisions you deem appropriate such as:  limiting
                                             the grant of authority to make only mental health treatment
                                             decisions, your own instructions regarding the administration
                                             or withholding of psychotropic medications and
                                             electroconvulsive treatment (ECT), instructions regarding
                                             your admission to and retention in a health care facility for
                                             mental health treatment, or instructions to refuse any specific
                                             types of treatment that are unacceptable to you.)

__________________________________________________

__________________________________________________

NOTE:  DO NOT initial unless you insert a limitation.___

 

______________     D.     Advance Instruction for Mental Health Treatment. (Notice:
         (Initial)                       This health care power of attorney may incorporate or be
                                             combined with an advance instruction for mental health
                                             treatment, executed in accordance with Part 2 of Article 3 of
                                             Chapter 122C of the General Statutes, which you may use to
                                             state your instructions regarding mental health treatment in
                                             the event you lack capacity to make or communicate mental
                                             health treatment decisions. Because your health care agent's
                                             decisions must be consistent with any statements you have
                                             expressed in an advance instruction, you should indicate here
                                             whether you have executed an advance instruction for mental
                                             health treatment):

__________________________________________________

__________________________________________________

NOTE:  DO NOT initial unless you insert a limitation.___

 

______________     E.      Autopsy and Disposition of Remains. In exercising the
         (Initial)                       authority to make decisions regarding autopsy and disposition
                                             of remains on my behalf, the authority of my health care agent
                                             is subject to the following special provisions and limitations.
                                             (Here you may include any specific limitations you deem
                                             appropriate such as:  limiting the grant of authority and the
                                             scope of authority, or instructions regarding burial or
                                             cremation):

__________________________________________________

__________________________________________________

NOTE:  DO NOT initial unless you insert a limitation.___

 

6.   Organ Donation.

 

To the extent I have not already made valid and enforceable arrangements during my lifetime that have not been revoked, my health care agent may exercise any right I may have to:

 

______________              donate any needed organs or parts; or

         (Initial)

______________              donate only the following organs or parts:

         (Initial)

                                             _________________________________________________

NOTE:  DO NOT INITIAL BOTH BLOCKS ABOVE.

 

______________              donate my body for anatomical study if needed.

         (Initial)

______________              In exercising the authority to make donations, my health care
         (Initial)                       agent is subject to the following special provisions and
                                             limitations: (Here you may include any specific limitations
                                             you deem appropriate such as: limiting the grant of authority
                                             and the scope of authority, or instructions regarding gifts of
                                             the body or body parts.)

__________________________________________________

__________________________________________________

__________________________________________________

 

NOTE:  DO NOT initial unless you insert a limitation.

 

NOTE:  NO AUTHORITY FOR ORGAN DONATION IS GRANTED IN THIS INSTRUMENT WITHOUT YOUR INITIALS.

 

7.   Guardianship Provision.

 

If it becomes necessary for a court to appoint a guardian of my person, I nominate the persons designated in Section 1, in the order named, to be the guardian of my person, to serve without bond or security. The guardian shall act consistently with G.S. 35A-1201(a)(5).

 

8.   Reliance of Third Parties on Health Care Agent.

 

A.        No person who relies in good faith upon the authority of or any representations by my health care agent shall be liable to me, my estate, my heirs, successors, assigns, or personal representatives, for actions or omissions in reliance on that authority or those representations.

B.        The powers conferred on my health care agent by this document may be exercised by my health care agent alone, and my health care agent's signature or action taken under the authority granted in this document may be accepted by persons as fully authorized by me and with the same force and effect as if I were personally present, competent, and acting on my own behalf. All acts performed in good faith by my health care agent pursuant to this power of attorney are done with my consent and shall have the same validity and effect as if I were present and exercised the powers myself, and shall inure to the benefit of and bind me, my estate, my heirs, successors, assigns, and personal representatives. The authority of my health care agent pursuant to this power of attorney shall be superior to and binding upon my family, relatives, friends, and others.

 

9.   Miscellaneous Provisions.

 

A.        Revocation of Prior Powers of Attorney. I revoke any prior health care power of attorney. The preceding sentence is not intended to revoke any general powers of attorney, some of the provisions of which may relate to health care; however, this power of attorney shall take precedence over any health care provisions in any valid general power of attorney I have not revoked.

 

B.        Jurisdiction, Severability, and Durability. This Health Care Power of Attorney is intended to be valid in any jurisdiction in which it is presented. The powers delegated under this power of attorney are  severable, so that the invalidity of one or more powers shall not affect any others. This power of attorney shall not be affected or revoked by my incapacity or mental incompetence.

 

C.        Health Care Agent Not Liable. My health care agent and my health care agent's estate, heirs, successors, and assigns are hereby released and forever discharged by me, my estate, my heirs, successors, assigns, and personal representatives from all liability and from all claims or demands of all kinds arising out of my health care agent's acts or omissions, except for my health care agent's willful misconduct or gross negligence.

 

D.        No Civil or Criminal Liability. No act or omission of my health care agent, or of any other person, entity, institution, or facility acting in good faith in reliance on the authority of my health care agent pursuant to this Health Care Power of Attorney shall be considered suicide, nor the cause of my death for any civil or criminal purposes, nor shall it be considered unprofessional conduct or as lack of professional competence. Any person, entity, institution, or facility against whom criminal or civil liability is asserted because of conduct authorized by this Health Care Power of Attorney may interpose this document as a defense.

 

E.         Reimbursement. My health care agent shall be entitled to reimbursement for all reasonable expenses incurred as a result of carrying out any provision of this directive.

 

By signing here, I indicate that I am mentally alert and competent, fully informed as to the contents of this document, and understand the full import of this grant of powers to my health care agent.

 

This the _____ day of ______________, 20____.

 

                                                                                       ________________________(SEAL)

 

I hereby state that the principal, _______________, being of sound mind, signed (or directed another to sign on the principal's behalf) the foregoing health care power of attorney in my presence, and that I am not related to the principal by blood or marriage, and I would not be entitled to any portion of the estate of the principal under any existing will or codicil of the principal or as an heir under the Intestate Succession Act, if the principal died on this date without a will. I also state that I am not the principal's attending physician, nor a licensed health care provider or mental health treatment provider who is (1) an employee of the principal's attending physician or mental health treatment provider, (2) an employee of the health facility in which the principal is a patient, or (3) an employee of a nursing home or any adult care home where the principal resides. I further state that I do not have any claim against the principal or the estate of the principal.

 

Date:  _____________________________  Witness: ___________________________

 

Date:  _____________________________  Witness: ___________________________

 

________________COUNTY, _________________STATE

 

Sworn to (or affirmed) and subscribed before me this day by _____________________

                                                                                                         (type/print name of signer)

 

                                                                                                         ______________________

                                                                                                        (type/print name of witness)

 

                                                                                                         ______________________

                                                                                                        (type/print name of witness)

 

 

Date:  ___________________________               ______________________________

                  (Official Seal)                                             Signature of Notary Public

 

                                                                                       __________________, Notary Public

                                                                                       Printed or typed name

 

                                                                                       My commission expires: __________

 

(b)       Use of the statutory form prescribed in this section is an optional and nonexclusive method for creating a health care power of attorney and does not affect the use of other forms of health care powers of attorney, including previous statutory forms."

SECTION 7.  Article 3 of Chapter 32A of the General Statutes is amended by adding the following new section to read:

" 32A-27.  Health care powers of attorney executed in other jurisdictions.

Notwithstanding G.S. 32A-16(3), a health care power of attorney or similar document executed in a jurisdiction other than North Carolina shall be valid as a health care power of attorney in this State if it appears to have been executed in accordance with the applicable requirements of that jurisdiction or of this State."

SECTION 8.  Article 4 of Chapter 35A of the General Statutes is amended by adding the following new section to read:

" 35A-1208.  Authority for health care decisions.

(a)       A guardian of the person or general guardian of an incompetent adult may petition the Clerk, in accordance with G.S. 32A-22(a), for an order suspending the authority of a health care agent, as that term is defined in G.S. 32A-16(2).

(b)       A guardian of the person or general guardian of an incompetent adult may not revoke a Declaration, as that term is defined in G.S. 90-321."

SECTION 9.  G.S. 35A-1241(a)(3) reads as rewritten:

"(3)      The guardian of the person may give any consent or approval that may be necessary to enable the ward to receive medical, legal, psychological, or other professional care, counsel, treatment, or service.service; provided that, if the patient has a health care agent appointed pursuant to a valid health care power of attorney, the health care agent shall have the right to exercise the authority granted in the health care power of attorney unless the Clerk has suspended the authority of that health care agent in accordance with G.S. 35A-1208. The guardian shall not, however, consent to the sterilization of a mentally ill or mentally retarded ward unless the guardian obtains an order from the clerk in accordance with G.S. 35A-1245. The guardian of the person may give any other consent or approval on the ward's behalf that may be required or in the ward's best interest. The guardian may petition the clerk for the clerk's concurrence in the consent or approval."

SECTION 10.  G.S. 90-320 reads as rewritten:

" 90-320.  General purpose of Article.

(a)       The General Assembly recognizes as a matter of public policy that an individual's rights include the right to a peaceful and natural death and that a patient or his the patient's representative has the fundamental right to control the decisions relating to the rendering of his the patient's own medical care, including the decision to have extraordinary means life-prolonging measures withheld or withdrawn in instances of a terminal condition. This Article is to establish an optional and nonexclusive procedure by which a patient or his the patient's representative may exercise these rights. A military advanced medical directive executed in accordance with 10 U.S.C. 1044 or other applicable law is valid in this State."

(b)       Nothing in this Article shall be construed to authorize any affirmative or deliberate act or omission to end life other than to permit the natural process of dying. Nothing in this Article shall impair or supersede any legal right or legal responsibility which any  person may have to effect the withholding or withdrawal of life-sustaining procedures life-prolonging measures in any lawful manner. In such respect the provisions of this Article are cumulative."

SECTION 11.(a)  G.S. 90-321(a), (b), and (c) read as rewritten:

"(a)      As used in this Article the term:The following definitions apply in this Article:

(1)       "Declarant" means a Declarant. - A person who has signed a declaration in accordance with subsection (c); (c) of this section.

(1a)     Declaration. - Any signed, witnessed, dated, and proved document meeting the requirements of subsection (c) of this section.

(2)       "Extraordinary means" is defined as any medical procedure or intervention 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;

(2a)     Life-prolonging measures. - As defined in G.S. 32A-16(4).

(3)       "Physician" means any Physician. - Any person licensed to practice medicine under Article 1 of Chapter 90 of the laws of the State of North Carolina;Carolina.

(4)       "Persistent vegetative state" is a medical condition whereby in the judgment of the attending physician the patient suffers from a sustained complete loss of self-aware cognition and, without the use of extraordinary means or artificial nutrition or hydration, will succumb to death within a short period of time.

(b)       If a person has declared, in accordance with subsection (c) below, a desire that his life not be prolonged by extraordinary means or by artificial nutrition or hydration, expressed through a declaration, in accordance with subsection (c) of this section, a desire that the person's life not be prolonged by life-prolonging measures, and the declaration has not been revoked in accordance with subsection (e);(e) of this section; and

(1)       It is determined by the attending physician that the declarant's present condition is a condition described in subsection (c) of this section and specified in the declaration for applying the declarant's directives, and

a.         Terminal and incurable; or

b.         Repealed by Session Laws 1993, c. 553, s. 28;

c.         Diagnosed as a persistent vegetative state; and

(2)       There is confirmation of the declarant's present condition as set out above in subdivision (b)(1) of this section by a physician other than the attending physician;

then extraordinary means or artificial nutrition or hydration, as specified by the declarant, the life-prolonging measures identified by the declarant shall or may, as specified by the declarant, may be withheld or discontinued upon the direction and under the supervision of the attending physician.

(c)       The attending physician may rely upon a signed, witnessed, dated and proved declaration, or a copy of that declaration obtained from the Advance Health Care Directive Registry maintained by the Secretary of State pursuant to Article 21 of Chapter 130A of the General Statutes; shall follow, subject to subsections (b), (e), and (k) of this section, a declaration:

(1)       Which expresses a desire of the declarant that extraordinary means or artificial nutrition or hydration not be used to prolong his life if his condition is determined to be terminal and incurable, or if the declarant is diagnosed as being in a persistent vegetative state; andThat expresses a desire of the declarant that life-prolonging measures not be used to prolong the declarant's life if, as specified in the declaration as to any or all of the following:

a.         The declarant has an incurable or irreversible condition that will result in the declarant's death within a relatively short period of time; or

b.         The declarant becomes unconscious and, to a high degree of medical certainty, will never regain consciousness; or

c.         The declarant suffers 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.

(2)       Which That states that the declarant is aware that the declaration authorizes a physician to withhold or discontinue the extraordinary means or artificial nutrition or hydration; life-prolonging measures; and

(3)       Which That has been signed by the declarant in the presence of two witnesses who believe the declarant to be of sound mind and who state that they (i) are not related within the third degree to the declarant or to the declarant's spouse, (ii) do not know or have a reasonable expectation that they would be entitled to any portion of the estate of the declarant upon his the declarant's death under any will of the declarant or codicil thereto then existing or under the Intestate Succession Act as it then provides, (iii) are not the attending physician, or an employee of the attending physician, or an employee of a health facility in which the declarant is a patient, or an employee of a nursing home or any group-care home in which the declarant resides,are not the attending physician, licensed health care providers who are paid employees of the attending physician, paid employees of a health facility in which the declarant is a patient, or paid employees of a nursing home or any adult care home in which the declarant resides, and (iv) do not have a claim against any portion of the estate of the declarant at the time of the declaration; and

(4)       Which That has been proved before a clerk or assistant clerk of superior court, or a notary public who certifies substantially as set out in subsection (d) below.(d1) of this section. A notary who takes the acknowledgement may but is not required to be a paid employee of the attending physician, a paid employee of a health facility in which the declarant is a patient, or a paid employee of a nursing home or any adult care home in which the declarant resides."

SECTION 11.(b)  G.S. 90-321(d) is repealed.

SECTION 11.(c)  G.S. 90-321 is amended by adding the following new subsection to read:

"(d1)    The following form is specifically determined to meet the requirements of subsection (c) of this section:

 

ADVANCE DIRECTIVE FOR A NATURAL DEATH ("LIVING WILL")

 

NOTE: YOU SHOULD USE THIS DOCUMENT TO GIVE YOUR HEALTH CARE PROVIDERS INSTRUCTIONS TO WITHHOLD OR WITHDRAW LIFE-PROLONGING MEASURES IN CERTAIN SITUATIONS. THERE IS NO LEGAL REQUIREMENT THAT ANYONE EXECUTE A LIVING WILL.

 

GENERAL INSTRUCTIONS: You can use this Advance Directive ("Living Will") form to give instructions for the future if you want your health care providers to withhold or withdraw life-prolonging measures in certain situations. You should talk to your doctor about what these terms mean. The Living Will states what choices you would have made for yourself if you were able to communicate. Talk to your family members, friends, and others you trust about your choices. Also, it is a good idea to talk with professionals such as your doctors, clergypersons, and lawyers before you complete and sign this Living Will.

 

You do not have to use this form to give those instructions, but if you create your own Advance Directive you need to be very careful to ensure that it is consistent with North Carolina law.

 

This Living Will form is intended to be valid in any jurisdiction in which it is presented, but places outside North Carolina may impose requirements that this form does not meet.

 

If you want to use this form, you must complete it, sign it, and have your signature witnessed by two qualified witnesses and proved by a notary public. Follow the instructions about which choices you can initial very carefully. Do not sign this form until two witnesses and a notary public are present to watch you sign it. You then should consider giving a copy to your primary physician and/or a trusted relative, and should consider filing it with the Advanced Health Care Directive Registry maintained by the North Carolina Secretary of State: http://www.nclifelinks.org/ahcdr/

 

My Desire for a Natural Death

 

I, ____________________, being of sound mind, desire that, as specified below, my life not be prolonged by life-prolonging measures:

 

1.         When My Directives Apply

 

            My directions about prolonging my life shall apply IF my attending physician determines that I lack capacity to make or communicate health care decisions and:

 

            NOTE: YOU MAY INITIAL ANY AND ALL OF THESE CHOICES.

 

_________                   I have an incurable or irreversible condition that will result
     (Initial)                     in my death within a relatively short period of time.

 

_________                   I become unconscious and my health care providers
     (Initial)                     determine that, to a high degree of medical certainty, I will
                                       never regain my consciousness.

 

_________                   I suffer from advanced dementia or any other condition
     (Initial)                     which results in the substantial loss of my cognitive ability
                                       and my health care providers determine that, to a high
                                       degree of medical certainty, this loss is not reversible.

 

2.         These are My Directives about Prolonging My Life:

 

            In those situations I have initialed in Section 1, I direct that my health care providers:

 

            NOTE: INITIAL ONLY IN ONE PLACE.

 

_________                   may withhold or withdraw life-prolonging measures.

     (Initial)

 

_________                   shall withhold or withdraw life-prolonging measures.

     (Initial)

 

3.         Exceptions - "Artificial Nutrition or Hydration"

 

            NOTE: INITIAL ONLY IF YOU WANT TO MAKE EXCEPTIONS TO YOUR INSTRUCTIONS IN PARAGRAPH 2.

 

            EVEN THOUGH I do not want my life prolonged in those situations I have initialed in Section 1:

_________                   I DO want to receive BOTH artificial hydration AND
     (Initial)                     artificial nutrition (for example, through tubes) in those
                                       situations.

 

NOTE: DO NOT INITIAL THIS BLOCK IF ONE OF THE BLOCKS BELOW IS INITIALED.

 

_________                   I DO want to receive ONLY  artificial hydration (for
     (Initial)                     example, through tubes) in those situations.

NOTE: DO NOT INITIAL THE BLOCK ABOVE OR BELOW IF THIS BLOCK IS INITIALED.

 

_________                   I DO want to receive ONLY artificial nutrition (for
     (Initial)                     example, through tubes) in those situations.

 

NOTE: DO NOT INITIAL EITHER OF THE TWO BLOCKS ABOVE IF THIS BLOCK IS INITIALED.

 

4.         I Wish to be Made as Comfortable as Possible

 

I direct that my health care providers take reasonable steps to keep me as clean, comfortable, and free of pain as possible so that my dignity is maintained, even though this care may hasten my death.

 

5.         I Understand my Advance Directive

 

I am aware and understand that this document directs certain life-prolonging measures to be withheld or discontinued in accordance with my advance instructions.

 

6.         If I have an Available Health Care Agent

 

If I have appointed a health care agent by executing a health care power of attorney or similar instrument, and that health care agent is acting and available and gives instructions that differ from this Advance Directive, then I direct that:

 

_________                   Follow Advance Directive:  This Advance Directive will
     (Initial)                     override instructions my health care agent gives about
                                       prolonging my life.

 

_________                   Follow Health Care Agent:  My health care agent has
     (Initial)                     authority to override this Advance Directive.

 

NOTE: DO NOT INITIAL BOTH BLOCKS. IF YOU DO NOT INITIAL EITHER BOX, THEN YOUR HEALTH CARE PROVIDERS WILL FOLLOW THIS ADVANCE DIRECTIVE AND IGNORE THE INSTRUCTIONS OF YOUR HEALTH CARE AGENT ABOUT PROLONGING YOUR LIFE.

 

7.         My Health Care Providers May Rely on this Directive

 

My health care providers shall not be liable to me or to my family, my estate, my heirs, or my personal representative for following the instructions I give in this instrument. Following my directions shall not be considered suicide, or the cause of my death, or malpractice or unprofessional conduct. If I have revoked this instrument but my health care providers do not know that I have done so, and they follow the instructions in this instrument in good faith, they shall be entitled to the same protections to which they would have been entitled if the instrument had not been revoked.

 

8.         I Want this Directive to be Effective Anywhere

 

            I intend that this Advance Directive be followed by any health care provider in any place.

 

9.         I have the Right to Revoke this Advance Directive

 

I understand that at any time I may revoke this Advance Directive in a writing I sign or by communicating in any clear and consistent manner my intent to revoke it to my attending physician. I understand that if I revoke this instrument I should try to destroy all copies of it.

 

This the ________ day of ____________, _________.

 

                                                            ___________________________________

                                                            Print Name __________________________

 

I hereby state that the declarant, ______________________, being of sound mind, signed (or directed another to sign on declarant's behalf) the foregoing Advance Directive for a Natural Death in my presence, and that I am not related to the declarant by blood or marriage, and I would not be entitled to any portion of the estate of the declarant under any existing will or codicil of the declarant or as an heir under the Intestate Succession Act, if the declarant died on this date without a will. I also state that I am not the declarant's attending physician, nor a licensed health care provider who is (1) an employee of the declarant's attending physician, (2) nor an employee of the health facility in which the declarant is a patient, or (3) an employee of a nursing home or any adult care home where the declarant resides. I further state that I do not have any claim against the declarant or the estate of the declarant.

 

Date:  _____________________________  Witness: ___________________________

 

Date:  _____________________________  Witness: ___________________________

 

________________COUNTY, _________________STATE

 

Sworn to (or affirmed) and subscribed before me this day by _____________________

                                                                                                     (type/print name of declarant)

 

                                                                                                     ________________________

                                                                                                     (type/print name of witness)

 

                                                                                                     ________________________

                                                                                                     (type/print name of witness)

 

 

Date  ___________________________                ______________________________

                  (Official Seal)                                             Signature of Notary Public

 

                                                                                       __________________, Notary Public

                                                                                       Printed or typed name

 

                                                                                       My commission expires: _________"

 

SECTION 11.(d)  G.S. 90-321(e), (h), and (i) read as rewritten:

"(e)      The above declaration may be revoked by the declarant, in any manner by which he is able to communicate his intent to revoke, without regard to his mental or physical condition. Such revocation shall become effective only upon communication to the attending physician by the declarant or by an individual acting on behalf of the declarant.A declaration may be revoked by the declarant, in writing or in any manner by which the declarant is able to communicate the declarant's intent to revoke in a clear and consistent manner, without regard to the declarant's mental or physical condition. A health care provider shall have no liability for acting in accordance with a revoked declaration unless the provider has actual notice of the revocation. A health care agent may not revoke a declaration unless the health care power of attorney explicitly authorizes that revocation; however, a health care agent may exercise any authority explicitly given to the health care agent in a declaration. A guardian of the person of the declarant or general guardian may not revoke a declaration.

(h)       The withholding or discontinuance of extraordinary means and/or the withholding or discontinuance of either artificial nutrition or hydration, or both life-prolonging measures in accordance with this section shall not be considered the cause of death for any civil or criminal purposes nor shall it be considered unprofessional conduct.conduct or a lack of professional competence. Any person, institution or facility against whom criminal or civil liability is asserted because of conduct in compliance with this section may interpose this section as a defense. The protections of this section extend to any valid declaration, including a document valid under subsection (l) of this section; these protections are not limited to declarations prepared in accordance with the statutory form provided in subsection (d1) of this section, or to declarations filed with the Advance Health Care Directive Registry maintained by the Secretary of State. A health care provider may rely in good faith on an oral or written statement by legal counsel that a document appears to meet the statutory requirements for a declaration.

(i)        Any certificate in the form provided by this section prior to July 1, 1979, shall continue to be valid. Use of the statutory form prescribed in subsection (d1) of this section is an optional and nonexclusive method for creating a declaration and does not affect the use of other forms of a declaration, including previous statutory forms."

SECTION 11.(e)  G.S. 90-321 is amended by adding the following new subsections to read:

"(k)      Notwithstanding subsection (c) of this section:

(1)       An attending physician may decline to honor a declaration that expresses a desire of the declarant that life-prolonging measures not be used if doing so would violate that physician's conscience or the conscience-based policy of the facility at which the declarant is being treated; provided, an attending physician who declines to honor a declaration on these grounds must not interfere, and must cooperate reasonably, with efforts to substitute an attending physician whose conscience would not be violated by honoring the declaration, or transfer the declarant to a facility that does not have policies in force that prohibit honoring the declaration.

(2)       An attending physician may decline to honor a declaration if after reasonable inquiry there are reasonable grounds to question the genuineness or validity of a declaration. The subsection imposes no duty on the attending physician to verify a declaration's genuineness or validity.

(l)        Notwithstanding subsection (c) of this section, a declaration or similar document executed in a jurisdiction other than North Carolina shall be valid in this State if it appears to have been executed in accordance with the applicable requirements of that jurisdiction or this State."

SECTION 12.  G.S. 90-322 reads as rewritten:

" 90-322.  Procedures for natural death in the absence of a declaration.

(a)       If a person is comatose and there is no reasonable possibility that he will return to a cognitive sapient state or is mentally incapacitated, and: If the attending physician determines, to a high degree of medical certainty, that a person lacks capacity to make or communicate health care decisions and the person will never regain that capacity, and:

(1)       It is determined by the attending physician that the person's present condition is:

a.         Terminal and incurable; or

b.         Repealed by Session Laws 1993, c. 553, s. 29.

c.         Diagnosed as a persistent vegetative state; and

(1a)     That the person:

a.         Has an incurable or irreversible condition that will result in the person's death within a relatively short period of time; or

b.         Is unconscious and, to a high degree of medical certainty, will never regain consciousness; and

(2)       There is confirmation of the person's present condition as set out above in this subsection, in writing by a physician other than the attending physician; and

(3)       A vital bodily function of the person could be restored by extraordinary means or a vital function of the person is being sustained by extraordinary means; or or is being sustained by life-prolonging measures;

(4)       The life of the person could be or is being sustained by artificial nutrition or hydration;

then, extraordinary means or artificial nutrition or hydration life-prolonging measures may be withheld or discontinued in accordance with subsection (b).(b) of this section.

(b)       If a person's condition has been determined to meet the conditions set forth in subsection (a) of this section and no instrument has been executed as provided in G.S. 90-32190-321, the extraordinary means or artificial nutrition or hydration then life-prolonging measures may be withheld or discontinued upon the direction and under the supervision of the attending physician with the concurrence (i) of a health care agent appointed pursuant to a health care power of attorney meeting the requirements of Article 3 of Chapter 32A of the General Statutes, or (ii) of a guardian of the person, or (iii) of the person's spouse, or (iv) of a majority of the relatives of the first degree, in that order.of the following persons, in the order indicated:

(1)       A guardian of the patient's person, or a general guardian with powers over the patient's person, appointed by a court of competent jurisdiction pursuant to Article 5 of Chapter 35A of the General Statutes; provided that, if the patient has a health care agent appointed pursuant to a valid health care power of attorney, the health care agent shall have the right to exercise the authority to the extent granted in the health care power of attorney and to the extent provided in G.S. 32A-19(b) unless the Clerk has suspended the authority of that health care agent in accordance with G.S. 35A-1208(a);

(2)       A health care agent appointed pursuant to a valid health care power of attorney, to the extent of the authority granted;

(3)       An attorney-in-fact, with powers to make health care decisions for the patient, appointed by the patient pursuant to Article 1 or Article 2 of Chapter 32A of the General Statutes, to the extent of the authority granted;

(4)       The patient's spouse;

(5)       A majority of the patient's reasonably available parents and children who are at least 18 years of age;

(6)       A majority of the patient's reasonably available siblings who are at least 18 years of age; or

(7)       An individual who has an established relationship with the patient, who is acting in good faith on behalf of the patient, and who can reliably convey the patient's wishes.

If none of the above is reasonably available then at the discretion of the attending physician the extraordinary means or artificial nutrition or hydration life-prolonging measures may be withheld or discontinued upon the direction and under the supervision of the attending physician.

(c)       Repealed by Session Laws 1979, c. 715, s. 2.

(d)       The withholding or discontinuance of such extraordinary means or artificial nutrition or hydration life-prolonging measures shall not be considered the cause of death for any civil or criminal purpose nor shall it be considered unprofessional conduct. Any person, institution or facility against whom criminal or civil liability is asserted because of conduct in compliance with this section may interpose this section as a defense."

SECTION 13.  G.S. 90-21.13 reads as rewritten:

" 90-21.13.  Informed consent to health care treatment or procedure.

(a)       No recovery shall be allowed against any health care provider upon the grounds that the health care treatment was rendered without the informed consent of the patient or the patient's spouse, parent, guardian, nearest relative or other person authorized to give consent for the patient where:

(1)       The action of the health care provider in obtaining the consent of the patient or other person authorized to give consent for the patient was in accordance with the standards of practice among members of the same health care profession with similar training and experience situated in the same or similar communities; and

(2)       A reasonable person, from the information provided by the health care provider under the circumstances, would have a general understanding of the procedures or treatments and of the usual and most frequent risks and hazards inherent in the proposed procedures or treatments which are recognized and followed by other health care providers engaged in the same field of practice in the same or similar communities; or

(3)       A reasonable person, under all the surrounding circumstances, would have undergone such treatment or procedure had he been advised by the health care provider in accordance with the provisions of subdivisions (1) and (2) of this subsection.

(b)       A consent which is evidenced in writing and which meets the foregoing standards, and which is signed by the patient or other authorized person, shall be presumed to be a valid consent. This presumption, however, may be subject to rebuttal only upon proof that such consent was obtained by fraud, deception or misrepresentation of a material fact. A consent that meets the foregoing standards, that is given by a patient, or other authorized person, who under all the surrounding circumstances has capacity to make and communicate health care decisions, is a valid consent.

(c)       A valid consent is one which is given by a person who under all the surrounding circumstances is mentally and physically competent to give consent. The following persons, in the order indicated, are authorized to consent to medical treatment on behalf of a patient who is comatose or otherwise lacks capacity to make or communicate health care decisions:

(1)       A guardian of the patient's person, or a general guardian with powers over the patient's person, appointed by a court of competent jurisdiction pursuant to Article 5 of Chapter 35A of the General Statutes; provided that, if the patient has a health care agent appointed pursuant to a valid health care power of attorney, the health care agent shall have the right to exercise the authority to the extent granted in the health care power of attorney and to the extent provided in G.S. 32A-19(b) unless the Clerk has suspended the authority of that health care agent in accordance with G.S. 35A-1208(a);

(2)       A health care agent appointed pursuant to a valid health care power of attorney, to the extent of the authority granted;

(3)       An attorney-in-fact, with powers to make health care decisions for the patient, appointed by the patient pursuant to Article 1 or Article 2 of Chapter 32A of the General Statutes, to the extent of the authority granted;

(4)       The patient's spouse;

(5)       A majority of the patient's reasonably available parents and children who are at least 18 years of age;

(6)       A majority of the patient's reasonably available siblings who are at least 18 years of age; or

(7)       An individual who has an established relationship with the patient, who is acting in good faith on behalf of the patient, and who can reliably convey the patient's wishes.

(c1)     If none of the persons listed under subsection (c) of this section is reasonably available, then the patient's attending physician, in the attending physician's discretion, may provide health care treatment without the consent of the patient or other person authorized to consent for the patient if there is confirmation by a physician other than the patient's attending physician of the patient's condition and the necessity for treatment; provided, however, that confirmation of the patient's condition and the necessity for treatment are not required if the delay in obtaining the confirmation would endanger the life or seriously worsen the condition of the patient.

(d)       No action may be maintained against any health care provider upon any guarantee, warranty or assurance as to the result of any medical, surgical or diagnostic procedure or treatment unless the guarantee, warranty or assurance, or some note or memorandum thereof, shall be in writing and signed by the provider or by some other person authorized to act for or on behalf of such provider.

(e)       In the event of any conflict between the provisions of this section and those of G.S. 35A-1245G.S. 35A-1245, 90-21.17, and 90-322, and Articles 1A and 19 of Chapter 90, and Article 3 of Chapter 122C of the General Statutes, the provisions of those sections and Articles shall control and continue in full force and effect."

SECTION 14.  G.S. 90-21.17 reads as rewritten:

" 90-21.17.  Portable do not resuscitate order.order and Medical Order for Scope of Treatment.

(a)       It is the intent of this section to recognize a patient's desire and right to withhold cardiopulmonary resuscitation and other life-prolonging measures to avoid loss of dignity and unnecessary pain and suffering through the use of a portable do not resuscitate ("DNR") order.order or a Medical Order for Scope of Treatment (MOST).

This section establishes an optional and nonexclusive procedure by which a patient or the patient's representative may exercise this right.

(b)       A physician may issue a portable DNR order or MOST for a patient:

(1)       With the consent of the patient;

(2)       If the patient is a minor, with the consent of the patient's parent or guardian; or

(3)       If the patient is not a minor but is incapable of making an informed decision regarding consent for the order, with the consent of the patient's representative.

The physician shall document the basis for the DNR order or MOST in the patient's medical record. When the order is a MOST, the patient or the patient's representative must sign the form, provided, however, that if it is not practicable for the patient's representative to sign the original MOST form, the patient's representative shall sign a copy of the completed form and return it to the health care professional completing the form. The copy of the form with the signature of the patient's representative, whether in paper or electronic form, shall be placed in the patient's medical record. When the signature of the patient's representative is on a separate copy of the MOST form, the original MOST form must indicate in the appropriate signature field that the signature is "on file".

(c)       The Department of Health and Human Services shall develop a portable DNR order form.form and a MOST form. The official DNR form shall include fields for the name of the patient; the name, address, and telephone number of the physician; the signature of the physician; and other relevant information. At a minimum, the official MOST form shall include fields for: the name of the patient; an advisory that a patient is not required to have a MOST; the name, telephone number, and signature of the physician, physician assistant, or nurse practitioner authorizing the order; the name and contact information of the health care professional who prepared the form with the patient or the patient's representative; information on who agreed (i.e., the patient or the patient's representative) to the options selected on the MOST form; a range of options for cardiopulmonary resuscitation, medical interventions, antibiotics, medically administered fluids and nutrition; patient or patient representative's name, contact information, and signature; effective date of the form and review dates; a prominent advisory that directions in a MOST form may suspend, while those MOST directions are in effect, any conflicting directions in a patient's previously executed declaration of an advance directive for a natural death ("living will"), health care power of attorney, or other legally authorized instrument; and an advisory that the MOST may be revoked by the patient or the patient's representative. The official MOST form shall also include the following statement written in boldface type directly above the signature line: 'You are not required to sign this form to receive treatment.' The form may be approved by reference to a standard form that meets the requirements of this subsection. For purposes of this section, the "patient's representative" means an individual from the list of persons authorized to consent to the withholding of extraordinary care life-prolonging measures pursuant to G.S. 90-322 or an individual who has an established relationship with the patient, who is acting in good faith on behalf of the patient, and who can reliably convey the patient's wishes.G.S. 90-322.

(d)       No physician, emergency medical professional, hospice provider, or other health care provider shall be subject to criminal prosecution, civil liability, or disciplinary action by any professional licensing or certification agency for withholding cardiopulmonary resuscitation or other life-prolonging measures from a patient in good faith reliance on an original DNR order or MOST form adopted pursuant to subsection (c) of this section, provided that (i) there are no reasonable grounds for doubting the validity of the order or the identity of the patient, and (ii) the provider does not have actual knowledge of the revocation of the portable DNR order.order or MOST. No physician, emergency medical professional, hospice provider, or other health care provider shall be subject to criminal prosecution, civil liability, or disciplinary action by any professional licensing or certification agency for failure to follow a DNR order or MOST form adopted pursuant to subsection (c) of this section if the provider had no actual knowledge of the existence of the DNR order.order or MOST.

(e)       A health care facility may develop policies and procedures that authorize the facility's provider to accept a portable DNR order or MOST as if it were an order of the medical staff of that facility. This section does not prohibit a physician in a health care facility from issuing a written order, other than a portable DNR order,order or MOST not to resuscitate a patient in the event of cardiac or respiratory arrest, or to use, withhold, or withdraw additional medical interventions as provided in the MOST, in accordance with acceptable medical practice and the facility's policies.

(f)        Nothing in this section shall affect the validity of portable DNR order or MOST forms in existence prior to the effective date of this section."

SECTION 15.(a)  G.S. 122C-3(20) reads as rewritten:

"(20)   "Legally responsible person" means: (i) when applied to an adult, who has been adjudicated incompetent, a guardian; (ii) when applied to a minor, a parent, guardian, a person standing in loco parentis, or a legal custodian other than a parent who has been granted specific authority by law or in a custody order to consent for medical care, including psychiatric treatment; or (iii) when applied to an adult who is incapable as defined in G.S. 122C-72(c) and who has not been adjudicated incompetent, a health care agent named pursuant to a valid health care power of attorney as prescribed in Article 3 of Chapter 32 of the General Statutes.attorney."

SECTION 15.(b)  G.S. 122C-57(d) reads as rewritten:

"(d)      Each voluntarily admitted client, the client's legally responsible person, or a health care agent named pursuant to a valid health care power of attorney client or the client's legally responsible person (including a health care agent named pursuant to a valid health care power of attorney) has the right to consent to or refuse any treatment offered by the facility. Consent may be withdrawn at any time by the person who gave the consent. If treatment is refused, the qualified professional shall determine whether treatment in some other modality is possible. If all appropriate treatment modalities are refused, the voluntarily admitted client may be discharged. In an emergency, a voluntarily admitted client may be administered treatment or medication, other than those specified in subsection (f) of this section, despite the refusal of the client, the client's legally responsible person, a health care agent named pursuant to a valid health care power of attorney, or client or the client's legally responsible person, even if  the client's refusal is expressed in a valid advance instruction for mental health treatment. The Commission may adopt rules to provide a procedure to be followed when a voluntarily admitted client refuses treatment."

SECTION 16.  G.S. 130A-468(c) and (d) read as rewritten:

"(c)      When the Secretary of State receives a revocation of a document that is filed with the registry and that document's file number and password, or a request to remove that document from the registry without its revocation, the Secretary shall delete that document from the registry database.

(d)       The Secretary of State's entry of a document into into, or removal of a document from, the registry database does not do any of the following:

(1)       Affect the validity of the document in whole or in part.

(2)       Relate to the accuracy of information contained in the document.

(3)       Create a presumption regarding the validity of the document, regarding the accuracy of information contained in the document, or that the statutory requirements for the document have been met."

SECTION 17.  G.S. 28A-13-1 reads as rewritten:

" 28A-13-1.  Time of accrual of duties and powers.

The duties and powers of a personal representative commence upon his or her appointment. The powers of a personal representative relate back to give acts by the person appointed which are beneficial to the estate occurring prior to appointment the same effect as those occurring thereafter. Prior to appointment, However, a person named executor in a will may may, prior to appointment, carry out written instructions of the decedent relating to his the decedent's body, funeral and burial arrangements.arrangements; provided that a health care agent authorized in a valid health care power of attorney to make body, funeral, and burial arrangements shall have precedence in making these arrangements, both before and after qualification of the decedent's personal representative, to the extent provided in G.S. 32A-19(b). A personal representative may ratify and accept acts on behalf of the estate done by others where the acts would have been proper for a personal representative."

SECTION 18.  The Legislative Research Commission shall study the issue of whether North Carolina law should be amended to allow a person to require life-prolonging measures.  The LRC shall involve all stakeholders in the study.  The LRC shall report its recommendations to the 2008 Session of the 2007 General Assembly.

SECTION 19.  The North Carolina Institute of Medicine (Institute) shall study issues related to the provision of end-of-life medical care in North Carolina.  As part of the study, the Division of Health Service Regulation, Department of Health and Human Services, and the North Carolina Board of Medicine shall provide to the Institute nonidentifying information regarding claims and complaints related to end-of-life medical treatment by health care providers that was contrary to the express wishes of either the patient or a person authorized by law to make treatment decisions on behalf of the patient.  The Institute may review any other data related to end-of-life medical care and treatment the Institute determines is relevant.

The purpose of this study is to determine whether statutory changes related to advance directives and health care powers of attorney impact the type and quantity of end-of-life medical care provided to patients, whether the patient's or patient representative's express wishes regarding the provision of treatment at the end of life are being honored, and whether there is any change in the number of persons who request continued treatment at the end of their lives, but do not receive that treatment.

The Institute shall report its findings to the following entities no later than January 30, 2013:

(1)       The 2013 General Assembly.

(2)       The North Carolina Bar Association.

(3)       The North Carolina Medical Society.


SECTION 20.  This act is effective October 1, 2007.

In the General Assembly read three times and ratified this the 31st day of July, 2007.

 

 

 

 

                                                                        _____________________________________

                                                                         Beverly E. Perdue

                                                                         President of the Senate

 

 

 

 

                                                                        _____________________________________

                                                                         Joe Hackney

                                                                         Speaker of the House of Representatives

 

 

 

 

                                                                        _____________________________________

                                                                         Michael F. Easley

                                                                         Governor

 

 

Approved __________.m. this ______________ day of ___________________, 2007