North Carolina Estate Planning Blog

Statutory Forms vs. Five Wishes: Health Care Documents in NC

north carolina elder lawNorth Carolina health care directives and powers of attorney are required in order for another person to make decisions about an individual’s medical or financial matters. As with most North Carolina estate planning and elder law tools, there is not just one way to prepare the necessary documents. Out of the options for advance directives and health care powers of attorney, which is better? Statutory forms or the Five Wishes documents?
  • North Carolina’s statutory form for a living will and health care power of attorney are valid statewide. The documents meet the requirements of North Carolina law; however, individuals are not required to exclusively use them. One can file these documents through the NC Advance Health Care Directive Registry.
  • Five Wishes meets the legal requirements for an advance directive in North Carolina. In fact, it is recognized in almost every state. (The only states that do not recognize Five Wishes are Oregon, Utah, Kansas, Texas, Alabama, Indiana, Ohio and New Hampshire.) Five Wishes is a set of forms that allows one to name a person to be their health care agent, and to check boxes and write statements in response to questions about medical treatments that one may or may not want under certain circumstances.
Five Wishes can be a good tool for having a conversation with the person one names as his or her health care agent. However, North Carolina health care providers are risk averse, and Five Wishes, unlike NC’s health care power of attorney, lacks clearly-written “safe harbor” language that limits a health care provider’s liability when taking direction from the health care agent. NC health care providers are more inclined to fulfill a client’s wishes when they are memorialized in NC’s statutory forms. Also, be aware that signing Five Wishes revokes previous health care powers of attorney. Some people sign Five Wishes, intending it to merely supplement their health care power of attorney, not realizing that they have then “undone” their health care power of attorney.
Failure to provide the appropriate forms could create a vulnerable situation for an individual should the time come where they are not able to make or communicate decisions about their own health. Regardless of the types of documents used for advance directive and power of attorney in NC, always consult a North Carolina elder law or estate planning lawyer to ensure proper language is included, the most up-to-date forms are being used, and all of the individual’s wishes are outlined as recognized by NC law. 
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Comments (2) Read through and enter the discussion with the form at the end
Paul Malley - January 24, 2013 1:30 PM

Thank you for your mention of our Five Wishes advance directive, of which there are more than 19 million copies in national circulation, many of which are in North Carolina. A wise lawyer is right to be cautious, but in the 16 years that Five Wishes has been in existence, we know of no case anywhere where a person's wishes were denied because they used the wrong form. Health care providers, especially in North Carolina, know they have an obligation to follow patient wishes no matter how they are expressed; longstanding federal law requires the same thing. We're grateful to the American Bar Association's Commission on Law and Aging for their guidance in developing Five Wishes and we are proud to number many law firms among our 35,000 partner organizations that distribute Five Wishes. You should also know that Five Wishes is used widely even in the eight states that mandate official state forms be used or that require additional warnings, disclaimers, etc. People like Five Wishes because it is easy to understand and use and addresses all a patient's needs - medical, legal, personal and spiritual. Paul Malley, President, Aging with Dignity.

Sean Franks - February 20, 2013 4:05 PM

Does a wife have to have POA to make medical decisions for her husband with End Stage Dementia?

RESPONSE: Not for withdrawing life support, but otherwise yes.

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