GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1991

H	2 

HOUSE BILL 96
Committee Substitute Favorable 5/13/91

Short Title:  Advance Directive/Health Care Decisions.   	(Public)
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Sponsors:
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Referred to:  
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February 19, 1991

A BILL TO BE ENTITLED
AN ACT TO MAKE AN ADVANCE DIRECTIVE FOR HEALTH CARE MATTERS AN OPTIONAL PART OF THE "RIGHT TO NATURAL DEATH" LAW.
The General Assembly of North Carolina enacts:
Section 1.  The title of Article 23 of Chapter 90 reads as rewritten:
"Right to Natural Death; Right to Advance Directive: Brain Death."
Sec. 2.  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 representative has the fundamental right to control the decisions relating to the rendering of his own medical care, including the decision to have extraordinary  means withheld or withdrawn in instances of a terminal condition.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 representative may exercise these rights and to establish an optional and nonexclusive procedure by which a patient may execute an Advance Directive designating several persons, one of whom shall act as the patient's agent to make health care decisions if and when the patient is unable to make or communicate his or her own.
(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 in any lawful manner. In such respect the provisions of this Article are cumulative."
Sec. 3.  G.S. 90-321 reads as rewritten:
"§ 90-321. Right to a natural death; right to Advance Directive.
(a)	As used in this Article the term:
(1)	'Advance Directive' means a document executed pursuant to subsection (c), that designates several persons of 18 years of age or more who are not actively engaged in providing health care to the declarant for remuneration, one of whom shall act as the declarant's agent to make health care decisions for the declarant if and when he or she is unable to make or communicate his or her own decisions.  The designated agent has the power, as regulated by this Article, to consent to the giving, withholding, or stopping of any health care, treatment, service, or diagnostic procedure, including the withholding or discontinuing of extraordinary means, and to talk with health care personnel, get information, and sign forms necessary to carry out these decisions.
(1.1)	'Declarant' means a person who has signed a declaration in accordance with subsection (c);
(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.  'Extraordinary means' do not include care necessary to provide comfort or to alleviate pain.  'Extraordinary means' do include artificial hydration and nutrition in cases in which a diagnosis of 'persistent vegetative state' as defined in subdivision (2.1) of this subsection has been made;
(2.1)	'Persistent vegetative state' means 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;
(3)	'Physician' means any person licensed to practice medicine under Article 1 of Chapter 90 of the laws of the State of North Carolina.
(b)	If a person has declared, in accordance with subsection (c) below, a desire that his life not be prolonged by extraordinary means; and the declaration has not been revoked in accordance with subsection (e) and
(1)	It is determined by the attending physician that the declarant's present condition is
		a.	Terminal and incurable; or
b.	Incurable with a diagnosis of 'persistent vegetative state' as defined in subdivision (2.1) of subsection (a) of this section; and
(2)	There is confirmation of the declarant's present condition as set out above in subdivision (b)(1) by a physician other than the attending physician;
then extraordinary means may be withheld or discontinued upon the direction and under the supervision of the attending physician.
(b1)	If a person has executed, in accordance with subsection (c), an Advance Directive designating several persons, one of whom shall act as agent to make health care decisions, if the designation has not been revoked in accordance with subsection (e), and if it is determined by the attending physician that the person is not able to make or communicate his or her own health care decisions, then the agent's decisions, other than those involving the withholding or discontinuing of extraordinary means, will be followed.  If the determinations laid out in subsection (b) are made, then the agent's decision to withhold or discontinue extraordinary means will be followed 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:
(1)	Which expresses a desire of the declarant that no extraordinary means be used to prolong his life if his condition is determined to be terminal and incurable; and
(2)	Which states that the declarant is aware that the declaration authorizes a physician to withhold or discontinue the extraordinary means; and
(3)	Which 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 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, 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 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; or
(5)	There is an Advance Directive designating a person to act as the declarant's agent in making health care decisions; and
(6)	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.
(d)	The following form is specifically determined to meet the requirements above:
'Declaration Of A Desire For A Natural
Death; Advance Directive (Optional)'
'I, ............, being of sound mind, desire that my life not be prolonged by extraordinary means if my condition is determined to be terminal, and incurable.  I am aware and understand that this writing authorizes a physician to withhold or discontinue extraordinary means.  I am aware and understand that if I have not made in this document or elsewhere in a writing or oral communication that constitutes my patient record any specific statement of desires concerning my health care treatment or any specific directions regarding specific treatments or limitations on treatments, that my attending physician's decisions shall be carried out, in accordance with this document.
Statement of desires concerning health care, treatment, services, and procedures, including life-prolonging health care, treatment, services, and procedures, and including any specific provisions and limitations, such as whether or not artificial feeding by vein or stomach tube merely to prolong life is a desired treatment:
......................................................................................................................................................
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(Cross out the following  if you do not wish to use 'Advance Directive' section and initial the crossing out.)
'To effect my wishes, I, .........., being of sound mind, designate ............., residing at...................., (Phone #) ......;
or if he or she shall for any reason fail to act,........, residing at ........... (Phone #).......;
or if he or she shall for any reason fail to act,........, residing at ........... (Phone #).......;
or if he or she shall for any reason fail to act,........, residing at ........... (Phone #).......;
as my agent to make health care decisions for me if and when I am unable to make or communicate my own health care decisions.  This designation gives my agent the power to consent to giving, withholding, or stopping any health care, treatment, service, or diagnostic procedure, including the withholding or discontinuing of extraordinary means.  My agent also has the authority to talk with health care personnel, get information, and sign forms necessary to carry out those decisions.
By this document I intend to create a power of attorney for health care decisions that shall take effect upon my incapacity to make my own health care decisions and shall continue during that incapacity.  This power of attorney is intended to be supplemental to any power of attorney executed pursuant to G.S. 32A-2(9), except that, if the decisions of the attorney-in-fact appointed pursuant to G.S. 32A-2(9) regarding my health care contradict the decisions made by my agent designated in this form, the decisions of my agent designated in this form shall be followed.
My agent shall make health care decisions as I direct below or as I otherwise make known in some other way.  I am aware and understand that if I have not made in this document or elsewhere in a writing or oral communication that constitutes my patient record any specific statement of desires concerning my health care treatment or any specific directions regarding specific treatments or limitations on treatments, that my agent's decisions shall be carried out, in accordance with this document.
If this document is in any way in conflict with a Declaration of a Desire for a Natural Death executed earlier, this document is to control.
Statement of desires concerning health care, treatment, services, and procedures, including life-prolonging health care, treatment, services, and procedures, and including any specific provisions and limitations such as:
(1)	Whether methods of treatment used merely to prolong life shall be used, such as:
a.	Artificial nutrition or hydration;
b.	Mechanical respiration;
c.	Cardiac resuscitation; or
d.	Antibiotic therapy; or
(2)	Whether drugs for the relief of pain shall be used even if these drugs might result in the shortening of life; or
(3)	Whether the declarant wishes to die at home:
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'This the ............ day of ............................
                                 Signature ...........................
'I hereby state that the declarant,..............., being of sound mind signed the above declaration in my presence and that I am not related to the declarant by blood or marriage and that I do not know or have a reasonable expectation that I would 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 agent designated in the Advance Directive. I also state that I am not the declarant's attending physician or an employee of the declarant's 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 where the declarant resides. I further state that I do not now have any claim against the declarant.
Witness .............................
Witness 	'
The clerk or the assistant clerk, or a notary public may, upon proper proof, certify the declaration as follows:

'Certificate'
'I, ..............., Clerk (Assistant Clerk) of Superior Court or Notary Public (circle one as appropriate) for .....................................................
County hereby certify that..............., the declarant, appeared before me and swore to me and to the witnesses in my presence that this instrument is his Declaration Of A Desire For A Natural Death, including his Advance Directive (cross out and initial if not applicable) and that he had willingly and voluntarily made and executed it as his free act and deed for the purposes expressed in it.
'I further certify that .......... and.........., witnesses, appeared before me and swore that they witnessed ........, declarant, sign the attached declaration, believing him to be of sound mind; and also swore that at the time they witnessed the declaration (i)	they were not related within the third degree to the declarant or to the declarant's spouse, and (ii) they did not know or have a reasonable expectation that they would be entitled to any portion of the estate of the declarant upon the declarant's death under any will of the declarant or codicil thereto then existing or under the Intestate Succession Act as it provides at that time, and (iii) they were not the agent designated in the Advance Directive, and (iv) they were not a physician attending the declarant or an employee of an attending physician or an employee of a health facility in which the declarant was a patient or an employee of a nursing home or any group-care home in which the declarant resided, and (v) they did not have a claim against the declarant. I further certify that I am satisfied as to the genuineness and due execution of the declaration.
'This the ............ day of ......................................
Clerk (Assistant Clerk) of Superior Court or Notary Public (circle one as appropriate) for the County of .............'
The above declaration may be proved by the clerk or the assistant clerk, or a notary public in the following manner:
(1)	Upon the testimony of the two witnesses; or
(2)	If the testimony of only one witness is available, then
a.	Upon the testimony of such witness, and
b.	Upon proof of the handwriting of the witness who is dead or whose testimony is otherwise unavailable, and
c.	Upon proof of the handwriting of the declarant, unless he  signed by his mark; or upon proof of such other circumstances as will satisfy the clerk or assistant clerk of the superior court, or a notary public as to the genuineness and due execution of the declaration.
(3)	If the testimony of none of the witnesses is available, such declaration may be proved by the clerk or assistant clerk, or a notary public
a.	Upon proof of the handwriting of the two witnesses whose testimony is unavailable, and
b.	Upon compliance with paragraph c of subdivision (2) above.
Due execution may be established, where the evidence required above is unavoidably lacking or inadequate, by testimony of other competent witnesses as to the requisite facts.
The testimony of a witness is unavailable within the meaning of this subsection when the witness is dead, out of the State, not to be  found within the State, insane or otherwise incompetent, physically unable to testify or refuses to testify.
If the testimony of one or both of the witnesses is not available the clerk or the assistant clerk, or a notary public or superior court may, upon proper proof, certify the declaration as follows:
'Certificate'
'I .........., Clerk (Assistant Clerk) of Court for the Superior Court or Notary Public (circle one as appropriate) of.......... County hereby certify that based upon the evidence before me I am satisfied as to the genuineness and due execution of the attached declaration by .........., declarant, and that the declarant's signature was witnessed by......, and .........., who at the time of the declaration met the qualifications of G.S. 90-321(c)(3).
'This the .... day of ......, .....
.........................................
Clerk (Assistant Clerk) of Superior Court
or Notary Public (circle one as
appropriate) for ......... County.'
	(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.
(f)	The execution and consummation of declarations made in accordance with subsection (c) shall not constitute suicide for any purpose.
(g)	No person shall be required to sign a declaration in accordance with subsection (c) as a condition for becoming insured under any insurance contract or for receiving any medical treatment.
(h)	The withholding or discontinuance of extraordinary means 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. 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.
(i)	Any certificate in the form provided by this section prior to July 1, 1979, shall continue to be valid."
Sec. 4.  G.S. 32A-9 reads as rewritten:
"§ 32A-2.  Powers conferred by the Statutory Short Form Power of Attorney set out in G.S. 32A-1.
The Statutory Short Form Power of Attorney set out in G.S. 32A-1 confers the following powers on the attorney-in-fact named therein:
	(1)	Real Property Transactions. – To lease, purchase, exchange, and acquire, and to agree, bargain, and contract for the lease, purchase, exchange, and acquisition of, and to accept, take, receive, and possess any interest in real property whatsoever, on such terms and conditions, and under such covenants, as said attorney-in-fact shall deem proper; and to maintain, repair, improve, manage, insure, rent, lease, sell, convey, subject to liens, mortgage, subject to deeds of trust, and in any way or manner deal with all or any part of any interest in real property whatsoever, that the principal owns at the time of execution or may thereafter acquire, for under such terms and conditions, and under such covenants, as said attorney-in-fact shall deem proper.
(2)	Personal Property Transactions. – To lease, purchase, exchange, and acquire, and to agree, bargain, and contract for the lease, purchase, exchange, and acquisition of, and to accept, take, receive, and possess any personal property whatsoever, tangible or intangible, or interest thereto, on such terms and conditions, and under such covenants, as said attorney-in-fact shall deem proper; and to maintain, repair, improve, manage, insure, rent, lease, sell, convey, subject to liens, and mortgages, and hypothecate, and in any way or manner deal with all or any part of any personal property whatsoever, tangible or intangible, or any interest therein, that the principal owns at the time of execution or may thereafter acquire, under such terms and conditions, and under such covenants, as said attorney-in-fact shall deem proper.
	(3)	Bond, Share and Commodity Transactions. – To request, ask, demand, sue for, recover, collect, receive, and hold and possess any bond, share, instrument of similar character, commodity interest or any instrument with respect thereto together with the interest, dividends, proceeds, or other distributions connected therewith, as now are, or shall hereafter become, owned by, or due, owing payable, or belonging to, the principal at the time of execution or in which the principal may thereafter acquire interest, to have, use, and take all lawful means and equitable and legal remedies, procedures, and writs in the name of the principal for the collection and recovery thereof, and to adjust, sell, compromise, and agree for the same, and to make, execute, and deliver for the principal, all indorsements, acquittances, releases, receipts, or other sufficient discharges for the same.
	(4)	Banking Transaction. – To make, receive, sign, indorse, execute, acknowledge, deliver, and possess checks, drafts, bills of exchange, letters of credit, notes, stock certificates, withdrawal receipts and deposit instruments relating to accounts or deposits in, or certificates of deposit of, banks, savings and loan or other institutions or associations for the principal.
	(5)	Safe Deposits. – To have free access at any time or times to any safe deposit box or vault to which the principal might have access as lessee or owner.
	(6)	Business Operating Transactions. – To conduct, engage in, and transact any and all lawful business of whatever nature or kind for the principal.
	(7)	Insurance Transactions. – To exercise or perform any act, power, duty, right or obligation whatsoever in regard to any contract of life, accident, health, disability or liability insurance or any combination of such insurance procured by or on behalf of the principal prior to execution; and to procure new, different or additional contracts of insurance for the principal and to designate the beneficiary of any such contract of insurance, provided, however, that the agent himself cannot be such beneficiary unless the agent is spouse, child, grandchild, parent, brother or sister of the principal.
	(8)	Estate Transactions. – To request, ask, demand, sue for, recover, collect, receive, and hold and possess all legacies, bequests, devises, as are, owned by, or due, owing, payable, or belonging to, the principal at the time of execution or in which the principal may thereafter acquire interest, to have, use, and take all lawful means and equitable and legal remedies, procedures, and writs in the name of the principal for the collection and recovery thereof, and to adjust, sell, compromise, and agree for the same, and to make, execute, and deliver for the principal, all indorsements, acquittances, releases, receipts, or other sufficient discharges for the same.
	(9)	Personal Relationships and Affairs. – To do all acts necessary for maintaining the customary standard of living of the principal, the spouse and children, and other dependents of the principal; to provide medical, dental and surgical care, hospitalization and custodial care for the principal, the spouse, and children, and other dependents of the principal; to continue whatever provision has been made by the principal, for the principal, the spouse, and children, and other dependents of the principal, with respect to automobiles, or other means of transportation; to continue whatever charge accounts have been operated by the principal, for the convenience of the principal, the spouse, and children, and other dependents of the principal, to open such new accounts as the attorney-in-fact shall think to be desirable for the accomplishment of any of the purposes enumerated in this section, and to pay the items charged on such accounts by any person authorized or permitted by the principal or the attorney-in-fact to make such charges; to continue the discharge of any services or duties assumed by the principal, to any parent, relative or friend of the principal; to continue payments incidental to the membership or affiliation of the principal in any church, club, society, order or other organization, or to continue contributions thereto.  In the event the attorney-in-fact named pursuant to G.S. 32A-1 makes a decision regarding the hospitalization for the principal that is contradictory to a decision made by an agent designated in an Advance Directive executed pursuant to Article 23 of Chapter 90 of the General Statutes, the decision of the agent shall overrule the decision of the attorney-in-fact.
	(10)	Social Security and Unemployment. – To prepare, execute and file all social security, unemployment insurance and information returns required by the laws of the United States, or of any state or subdivision thereof, or of any foreign government.
	(11)	Benefits from Military Service. – To execute vouchers in the name of the principal for any and all allowances and reimbursements payable by the United States, or subdivision thereof, to the principal, arising from or based upon military service and to receive, to indorse and to collect the proceeds of any check payable to the order of the principal drawn on the treasurer or other fiscal officer or depositary of the United States or subdivision thereof; to take possession and to order the removal and shipment, of any property of the principal from any post, warehouse, depot, dock or other place of storage or safekeeping, either governmental or private, to execute and to deliver any release, voucher, receipt, bill of lading, shipping ticket, certificate or other instrument which the agent shall think to be desirable or necessary for such purpose; to prepare, to file and to prosecute the claim of the principal to any benefit or assistance, financial or otherwise, to which the principal is, or claims to be, entitled, under the provisions of any statute or regulation existing at the creation of the agency or thereafter enacted by the United States or by any state or by any subdivision thereof, or by any foreign government, which benefit or assistance arises from or is based upon military service performed prior to or after execution.
	(12)	Tax. – To prepare, execute, verify and file in the name of the principal and on behalf of the principal any and all types of tax returns, amended returns, declaration of estimated tax, report, protest, application for correction of assessed valuation of real or other property, appeal, brief, claim for refund, or petition, including petition to the Tax Court of the United States, in connection with any tax imposed or proposed to be imposed by any government, or claimed, levied or assessed by any government, and to pay any such tax and to obtain any extension of time for any of the foregoing; to execute waivers or consents agreeing to a later determination and assessment of taxes than is provided by any statute of limitations; to execute waivers of restriction on the assessment and collection of deficiency in any tax; to execute closing agreements and all other documents, instruments and papers relating to any tax liability of any sort; to institute and carry on through counsel any proceeding in connection with determining or contesting any such tax or to recover any tax paid or to resist any claim for additional tax on any proposed assessment or levy thereof; and to enter into any agreements or stipulations for compromise or other adjustments or disposition of any tax.
	(13)	Employment of Agents. – To employ agents such as legal counsel, accountants or other professional representation as may be appropriate and to grant such agents such powers of attorney or other appropriate authorization as may be required in connection with such representation or by the Internal Revenue Service or other governmental authority."
Sec. 5.  This act becomes effective October 1, 1991, and applies to documents executed on and after that date.