Consumers


Topics in this section:
  1. Medical Care Decisions and Advance Directives
  2. How Advance Directives Work in North Carolina Facilities

How ADVANCE DIRECTIVES Work In
North Carolina Nursing Facilities

What are advance directives?

You have the right to control decisions about your medical care. Normally you can exercise this right by simply telling your health care providers what you want or don't want. But what if you're too sick to make your own decisions or communicate them?

Advance directives are legal documents that tell others, such as your doctor or family, what medical treatments you do or don't want when and if you become unable to make or communicate decisions about your medical care.

North Carolina law specifically recognizes three types of advance directives.

One is called a living will. With a living will, you can tell your doctor to withhold:

a) Extraordinary means of care which artificially postpone death, such as breathing machines; or
b) Artificial nutrition and hydration (food and water given through tubes if you can't eat or drink on your own); or
c) Both if you are terminally ill or in a persistent vegetative state.

This is the only function of a living will.

The second kind of advance directive is called a health care power of attorney.

With this document, you can name another person, like a friend or family member, as your agent to make medical decisions for you if you can't make them yourself. You can give your agent authority to consent to the care you need, review your medical records, admit you to a nursing facility or hospital, hire and fire medical care providers, etc. Your agent can also request the withholding of life-sustaining care or artificial nutrition or hydration if you are terminally ill or in a persistent vegetative state. You can limit the powers of your agent by writing special instructions in the document.

The third kind of advance directive is called an advance instruction for mental health treatment. With this document, you can give your instructions and preferences for mental health treatment. You may also appoint an agent to make mental health decisions for you if you are not capable of making them yourself.

The State of North Carolina and a number of organizations around the state have prepared brief summaries explaining the legal requirements for making advance directives. You can obtain these summaries from most public libraries, the North Carolina Bar Association, and most health care facilities which you may be entering as a patient or resident.

How Advance Directives Work In Nursing Facilities

All North Carolina nursing facilities are required by federal law to provide residents with a written description of residents' rights under state law to control decisions concerning their medical care and to make advance directives. The State of North Carolina has prepared a summary of state law which the facility's social worker, admissions coordinator or other staff member will give to residents at admission. The pamphlet you are now reading is designed to supplement the State summary by answering some of the questions commonly asked by residents or their families about advance directives in nursing facilities.

If I have an advance directive, should I give a copy to the nursing facility?

Yes. Federal law requires that nursing facilities indicate in a resident's medical record whether the resident has an advance directive. Facility staff will ask you for a copy of any advance directive you have completed and will place the copy in your medical record. This ensures that the staff and your doctor know what wishes you have expressed about your care. It is your responsibility to provide the facility with a copy of your advance directive.

You should also give a copy to your doctor and to family members. Living wills, health care powers of attorney, and advance instructions for mental health treatment should be placed where they can be easily located by family or friends. They should not be hidden or placed in safety deposit boxes, safes, etc. Also, you should review your living will and health care power of attorney from time to time to be sure they are still consistent with your current wishes. You do not have to file these documents with the courts for it to be effective.

What if I am unable to tell someone that I have an advance directive?

If you are admitted to a nursing facility and are too sick to tell the staff whether you have an advance directive, the staff will ask your family, legal guardian or other person who admits you whether you have an advance directive and for a copy of it. The facility will also give the information that you would normally get about advance directives to the person who admits you. If your condition improves later so that you can talk to the staff about advance directives, the staff will then discuss them with you.

Does the facility have to follow the instructions I leave in an advance directive?

North Carolina law gives you the right to control your medical care. If you've properly completed an advance directive, the nursing facility should honor it; however, under federal and state law, a nursing facility can only provide the care ordered by a resident's physician. If your physician orders care which conflicts with your advance directive, most facilities will attempt to resolve the conflict through meetings between the resident, resident's family, physician and facility staff.

What role does my family play in making my advance directive?

Many residents believe that their families can make an advance directive for them; however, the right to make advance directives belongs to the resident, not the resident's family. A resident has the right to choose care through an advance directive with which their family may not agree. Residents may choose to discuss their medical care decisions with their families; however, families should be aware that the facility must honor the medical care choices expressed by a resident over those of the family.

Do I need to make an advance directive?

No. You cannot be required to make a living will, health care power of attorney, or advance instruction for mental health treatment. You cannot be denied admission to a nursing facility because you don't have an advance directive. You cannot be discriminated against in the type or quality of care you receive because you don't have an advance directive.

However, making an advance directive is probably the best way to ensure that your wishes regarding the care you receive are honored. If you don't have an advance directive, your doctors may have to rely upon your family to make decisions for you. Your family may make choices different from those you would have made. Or they may disagree over issues like the withholding of artificial nutrition and hydration if you are terminally ill, leaving your doctor and the nursing facility unsure of what to do.

When should I make an advance directive?

You must be competent to make a living will, health care power of attorney, or advance instruction for mental health treatment. That means you must still be able to understand what your health care choices are and to communicate your decisions. Once you become incompetent, it is too late to make an advance directive.

Can I make an advance directive in a nursing facility?

Most facilities will have blank forms which can be used to make a living will, health care power of attorney, or advance instruction for mental health treatment, or can tell you where to get them; however, the resident must complete and sign the forms. The resident's signature on the form must be witnessed by two witnesses. Under state law, facility staff cannot serve as witnesses for a resident's living will, health care power of attorney or advance instruction for mental health treatment.

Can the nurse or social worker explain the form to me?

Living wills, health care powers of attorney and advance instructions for mental health treatment are legal documents. Although completing the forms to make these documents is simple, some residents have questions that require legal knowledge to answer. Facility staff are not trained in the law. While the staff may be able to provide you with forms and answer some very basic questions about them, they will not be able to answer specific questions about the meaning of terms in the form or tell you whether you should have an advance directive. If you have those kinds of questions, you should discuss them with your family or a lawyer. The facility may be able to give you the names of lawyers in your area who can help you.

Do I have to have a lawyer to make an advance directive?

No. You can obtain the forms and complete them on your own or with the help of family or friends. However, a lawyer may be helpful if you have questions about the forms or other questions.

Can I change my mind after I make an advance directive?

Yes, you can revoke or cancel a living will or health care power of attorney, or advance instruction for mental health treatment if you change your mind after you have made one. You can revoke your living will by simply communicating your intent to cancel it, in any way you can communicate. And you can revoke it even if you are no longer competent. For your revocation to be effective, either you or someone acting on your behalf must tell your doctor that you revoke the living will.

You can revoke your health care power of attorney by communicating your intent to revoke it in any manner you can communicate. This must occur while you are still able to make and communicate health care decisions. Your revocation is effective only after you tell your doctor and each person you named as a possible agent that you revoke your health care power of attorney.

You can revoke your advance instruction for mental health treatment by telling your doctor or other provider. This must occur while you are still able to make and communicate health care decisions.

 
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