Mutual Wills containing Last Will and Testaments for Man and Woman living together not Married with No Children
Note: This summary is not intended to be an
all inclusive discussion of the law of wills in North Carolina, but does
contain basic and other provisions. A discussion of hand written
wills is not included.
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE NORTH CAROLINA GENERAL STATUTES
DECLARATION OF A DESIRE FOR A NATURAL DEATH
(§§ 90-320 through 90-323)
Definitions
A "declarant" is a person who has signed a declaration in accordance with the provisions of §§ 90-320 through 90-323.
"Extraordinary means" is 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.
A "physician" is any person licensed to practice medicine pursuant to North Carolina law.
A "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.
Effectiveness of Declaration
If a person has declared a desire that his life not be prolonged by extraordinary means or by artificial nutrition or hydration, and the declaration has not been revoked, and it is determined by the attending physician that the declarant's present condition is terminal and incurable or the declarant is diagnosed as being in a persistent vegetative state, and there is confirmation of the declarant's present condition by a physician other than the attending physician, then extraordinary means or artificial nutrition or hydration may be withheld or discontinued upon the direction and under the supervision of the attending physician.
The attending physician may rely upon a signed, witnessed, dated and proved declaration:
<blockquote>Which expresses a desire of the declarant that extraordinary means or artificial nutrition or hydration not be used to prolong his life if his condition is determined to be terminal and incurable, or if the declarant is diagnosed as being in a persistent vegetative state; and
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; and
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 are not related within the third degree to the declarant or to the declarant's spouse, 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, 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 do not have a claim against any portion of the estate of the declarant at the time of the declaration; and which has been proved before a clerk or assistant clerk of superior court, or a notary public who certifies that the declaration has been proved.</blockquote>
A declaration may be proved before a clerk or assistant clerk of superior court, or a notary public upon the testimony of the two witnesses; or
If the testimony of only one witness is available, then upon the testimony of such witness, and upon proof of the handwriting of the witness who is dead or whose testimony is otherwise unavailable, and 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.
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 upon proof of the handwriting of the two witnesses whose testimony is unavailable, and upon compliance with the requirements set out above proper 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" 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 using the statutory certification provided for that purpose.
Revocation
A 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. A revocation becomes effective only upon communication to the attending physician by the declarant or by an individual acting on behalf of the declarant.
The statutory form may be combined with or incorporated into a health care power of attorney form, provided, however, that the resulting form shall be signed, witnessed, and proved in accordance with the statutory provisions relating to a DECLARATION OF A DESIRE FOR A NATURAL DEATH.
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