Do I Need A Living Will In North Carolina?

A Living Will—also known as an Advance Directive for a Natural Death or simply an advance directive—is a legal document that allows you to outline your preferences for medical treatment if you become unable to communicate due to a terminal illness, permanent unconsciousness, or severe cognitive impairment like advanced dementia. In essence, what is a living will? It’s your voice when you can’t speak, ensuring your end-of-life wishes are respected rather than leaving them to guesswork or family disputes.

In North Carolina, living wills are governed by state statutes (primarily N.C. Gen. Stat. §§ 90-320 to 90-323), and they focus on withholding or withdrawing life-prolonging measures, such as ventilators, feeding tubes, or CPR, under specific conditions. Unlike a last will and testament, which handles asset distribution after death, a living will addresses healthcare decisions during your lifetime, making it a cornerstone of estate planning.

In years past, Living Wills were very short. You had to initial a line to say whether you want to be kept alive if you are in terminal decline. Most people refer to this as “pulling the plug.” Several years ago, our Raleigh law firm decided to expand the language in our Living Wills. We wanted to include various medical conditions and various treatment options. In other words, a client can now customize her Living Will to meet their end-of-life wishes. This customization is especially valuable in NC, where the statutory form is broad but can be tailored for more detailed guidance, such as preferences for artificial nutrition/hydration or dementia-specific care.

What Conditions Make a Living Will Effective?

There are three main medical conditions that cause a Living Will to become effective. They are as follows:

• When you develop an incurable or irreversible medical condition that will result in your death within a short period of time.
• When you become unconscious and your health care providers examine you, only if they determine they can be very certain you will never regain consciousness.
• When you suffer from advanced dementia or any other condition which results in the substantial loss of your cognitive ability, and your healthcare providers determine that, to a high degree of medical certainty, this loss is not reversible.

When signing your Living Will, you can determine if you want your life extended if you have one of the foregoing medical conditions.

There is another important aspect of your Living Will. It is that you can determine whether you want artificial hydration or artificial nutrition to remain in place if it will extend your life. In other words, do you want an IV or a feeding tube? This can often be a difficult decision for family members to make for you. It is best if you put your wishes in writing while you still have the ability to make the decisions yourself.

Often, your family members do not know your wishes. If not, you will leave them with the enormous burden of making decisions for you. We always suggest putting your wishes in writing. You can do this through the execution of a Living Will, no matter what your wishes. Your wishes cannot be “right” or “wrong.” They are your wishes, which your family needs to know.

Why Is a Living Will Important? The Benefits of Having One in North Carolina

Should I have a living will? Do you need a living will? Absolutely! It’s one of the smartest steps you can take for peace of mind.

Here are key benefits of living wills in North Carolina:

• Ensures Your Wishes Are Followed: A living will legally binds healthcare providers to honor your directives, preventing unwanted treatments and aligning care with your values.
• Reduces Family Stress and Disputes: Without one, loved ones may face heartbreaking choices, leading to conflicts (like the infamous Terri Schiavo case). A clear document spares them this burden.
• Provides Legal Protection: In NC, it’s recognized as binding under state law, offering clarity during crises and potentially avoiding court intervention.
• Supports Broader Estate Planning: Pairs seamlessly with a health care power of attorney (naming an agent for non-end-of-life decisions) and a last will and testament, creating a holistic plan.
• Cost-Effective Peace of Mind: Basic forms are free, and it empowers you to focus on comfort care rather than prolonged suffering.

Even if you’re healthy, anyone over 18 should consider one. Life is unpredictable.

What Happens If You Don’t Have a Living Will in North Carolina?

What happens if you don’t have a living will? Without this document, decisions default to your closest relatives under NC law, following a hierarchy: spouse, adult children, parents, siblings, or guardians. Healthcare providers may prolong life by default to avoid liability, even if it contradicts unspoken wishes. This can lead to prolonged suffering, family rifts, or unwanted interventions. For example, if you’re in a persistent vegetative state, your spouse might authorize a feeding tube against your preferences, sparking legal battles. Proactive planning prevents this, meaning you don’t have to leave it to chance or state defaults.

North Carolina Living Will Requirements: How to Create One

North Carolina living will requirements are straightforward, per N.C. Gen. Stat. § 90-322:

• You must be 18+ and of sound mind.
• Use a written form (the official statutory one or a substantially similar document).
• Sign in front of two qualified adult witnesses (not blood/marriage relatives, your doctor, or anyone with a financial stake in your estate).
• Does a living will need to be notarized? Not strictly required for validity, but strongly recommended. It makes the document “self-proving,” speeding up enforcement without needing to track down witnesses. Witnesses must also meet NC standards (e.g., no healthcare facility employees if you’re a patient there).

No court filing is needed upfront, but register it with the NC Secretary of State’s Advance Health Care Directive Registry for easy access by providers. It’s legally binding once your physician confirms incapacity with “high medical certainty.”

Living will vs. will: A living will is for healthcare while alive; a last will and testament (which does not need notarization in NC but benefits from it for probate ease) handles assets post-death.

How Do I Make a Living Will in North Carolina? Step-by-Step Guide

Creating a living will in North Carolina (or advance directive) is simple and doesn’t require a lawyer for basic needs. Here’s how:

1. Discuss Your Wishes: Talk to family, doctors, and trusted advisors about scenarios like terminal illness or coma. Consider options for ventilation, nutrition, and pain management.

1. Spell It Out: Specify your choices with a trusted estate planning attorney (e.g., withhold life support? Allow feeding tubes?). Optionally name a healthcare agent.
2. Sign and Witness: Sign with two witnesses present. Get it notarized the same day.
3. Distribute Copies: Give to your doctor, agent, family, and register online.
4. Review Regularly: Update after life changes (e.g., divorce, new diagnosis).

Is a living will legally binding? Yes, in NC and nationwide, if properly executed.

Common Living Will and Advance Directive Questions

We’ve expanded our FAQ based on what North Carolinians frequently search for. Note: Some questions below reference last wills and testaments for clarity, as searches often overlap. Remember, a living will is healthcare-focused.

People Often Ask Us if They Really Need a Living Will

The answer is “yes,” even if you think your family members know your wishes. Many clients I talk to remember the case involving Terri Schiavo. She was the Florida woman who had a feeding tube but was considered medically brain dead. Ms. Schiavo’s family battled in court over removing the feeding tube. One side of her family said she wanted the feeding tube and the other side said she did not want the feeding tube. This turned into a traumatic case for all her family and much of the United States. We all watched her end of life struggles play out in a courtroom and on television. A Living Will could have avoided this battle among Ms. Schiavo’s family.

If our Wake County law firm can help with any of your estate planning needs, then please call us. Basic estate planning documents can often save heartache and family battles.

Speak to a Will and Estate Lawyer in Raleigh

If our attorneys can help with any of your estate planning needs, then please do not hesitate to call. We can promise you that the cost of obtaining a Will is some of the best money ever spent. You owe it to your family. Call (919) 365-6000 or request a case review today.