Revocation of Statutory Equivalent of Living Will or Declaration
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE NORTH CAROLINA GENERAL STATUTES
REVOCATION OF 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declaration has not been revoked, and it is determined by the attending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:
- 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.
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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