GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	1 

HOUSE BILL 790

Short Title:  Living Wills Clarified.	(Public)

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Sponsors: Representatives Gamble; and G. Miller.

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Referred to:  Judiciary I.

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April 10, 1995

A BILL TO BE ENTITLED
AN ACT TO CLARIFY AND SIMPLIFY THE DECLARATION OF A RIGHT TO A NATURAL DEATH.
Whereas, 20 years ago, the North Carolina General Assembly passed legislation authorizing a "living will", to enable people to decide before they became terminally ill that they did not want to have life prolonged if they became terminally ill and to make this decision known to health care providers; and
Whereas, recent legislation has modified the living will to allow consideration of persistent vegetative state as well as of terminal illness in using a living will; and
Whereas, Congress has now mandated the availability of living wills or advance directives in hospitals; and
Whereas, although the public's use of living wills is still very limited, the North Carolina General Assembly has enacted legislation permitting the use of a durable power of attorney for health care, which use depends on very complicated legal forms and analysis and does not help to encourage the public use of advance directives or living wills; and
Whereas, simplifying and clarifying the living will process will greatly help the public use living wills or advance directives; Now, therefore;
The General Assembly of North Carolina enacts:
Section 1.  G.S. 90-321 reads as rewritten:
"§ 90-321.  Right to a natural death.
(a)	As used in this Article the term:
(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, including any short-term therapy or support such as oxygen or fluid therapy, 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;
(3)	'Physician' means any person licensed to practice medicine under Article 1 of Chapter 90 of the laws of the State of North 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;
(5)	'Terminal condition' means an incurable or irrevocable condition that, without the administration of extraordinary means, will, in the opinion of the attending physician, result in death within a relatively short time.
(b)	If a person has declared, in accordance with subsection (c) below, a desire that life not be prolonged by extraordinary means or by artificial nutrition or hydration, regardless of whether administered through an invasive medical procedure, 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; 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) by a physician other than the attending physician;
then extraordinary means or artificial nutrition or hydration, regardless of whether administered through an invasive medical procedure, 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 (i) signed, witnessed or proved, and dated or (ii) holographic and dated declaration:
(1)	Which expresses a desire of the declarant that extraordinary means or artificial nutrition or hydration, regardless of whether administered through an invasive medical procedure, not be used to prolong life if the declarant's condition is determined to be terminal, or if the declarant is diagnosed as being in a persistent vegetative state; and
(2)	Which states that the declarant is aware that the declaration authorizes a physician to withhold or discontinue the extraordinary means or artificial nutrition or hydration, regardless of whether administered through an invasive medical procedure; 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 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, 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.
(d)	The following form is specifically determined to meet the requirements above.  This form may be copied by the declarant and be a holographic declaration that, when dated, will be a declaration upon which the attending physician may rely, when the physician can determine that the holographic declaration is in the handwriting of the declarant:

'Declaration Of A Desire For A Natural Death'

'I, ..............., being of sound mind, desire that, as specified below, my life not be prolonged by extraordinary means or by artificial nutrition or hydration, regardless of whether administered through an invasive medical procedure, if my condition is determined to be terminal or if I am diagnosed as being in a persistent vegetative state.  I am aware and understand that this writing authorizes a physician to withhold or discontinue extraordinary means or artificial nutrition or hydration, regardless of whether administered through an invasive medical procedure, in accordance with my specifications set forth below:
(Initial any of the following, as desired):

'.....	If my condition is determined to be 
terminal, I authorize the following:

......	My physician may withhold or discontinue
extraordinary means only.

......	In addition to withholding or discontinuing extraordinary means if such means are necessary, my physician may withhold or discontinue either artificial nutrition or hydration, regardless of whether administered through an invasive medical procedure, or both.

'.....	If my physician determines that I am in a persistent
vegetative state, I authorize the following:

......	My physician may withhold or discontinue
extraordinary means only.

......		In addition to withholding or discontinuing extraordinary means if such means are necessary, my physician may withhold or discontinue either artificial nutrition or hydration, regardless of whether administered through an invasive medical procedure, or both.

If I have executed a Health Care Power of Attorney pursuant to Article 3 of Chapter 32A of the General Statutes in addition to making out this Declaration, I wish the
	[ ] Declaration
	[ ] Power of Attorney
to control in the event of any conflict.

'This the ............day of..................................
Signature...............................

If the Declaration is signed in the presence of two witnesses pursuant to subdivision (3) of subsection (c) of this section, the following form shall be used:

'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 declarant's attending physician. I further state that I do not now have any claim against the declarant.
Witness
	Witness	'

	
									The clerk or assistant clerk of superior court or a notary public may, upon the proper proof, certify the Declaration pursuant to subdivision (4) of subsection (c) of this section 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.
'This the ...... day of ............, ......

Clerk (Assistant Clerk) of Superior Court or Notary Public (circle one as appropriate) for ............... County.'
The clerk, assistant clerk, or notary public may consider the Declaration proved upon proof of the handwriting of the declarant, or upon proof of the declarant's mark, or upon proof of any other circumstances as will satisfy the clerk, assistant clerk, or notary public as to the genuineness and due execution of the Declaration.
(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 and/or the withholding or discontinuance of either artificial nutrition or hydration, regardless of whether administered through an invasive medical procedure, or both 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.
(j)	The form provided by this section may be combined with or incorporated into a health care power of attorney form meeting the requirements of Article 3 of Chapter 32A of the General Statutes; provided, however, that the resulting form shall be signed, witnessed, and proved in accordance with the provisions of this section. In the event that the Declaration and the health care power of attorney conflict, the declarant's selection in the Declaration on which should control shall be followed."
Sec. 2.  The Medical Care Commission shall ensure that Declaration of a Desire for a Natural Death forms are available in all doctors' offices, hospitals, nursing homes, domiciliary care facilities, and in any other health care institutions that it regulates.  The Commission shall also ensure that all patients of these health care providers have their rights to make a Declaration adequately explained to them and have adequate aid in filling out the forms.
This act becomes effective July 1, 1995.  Forms and procedures authorized before the effective date of this act remain in full force and effect unless in conflict with this act, in which case this act controls, or unless the Medical Care Commission makes changes in rules in accordance with this act's mandate.