When life throws an unexpected curveball in the form of serious illness or incapacitation, who will speak for you? How can you ensure the medical care you receive aligns with your values when you are unable to voice those values yourself?
As experienced estate planning attorneys, we get these questions a lot. That’s why, at Johnson Legal, we see advance care planning as so much more than paperwork. We view well-crafted advance directives as an empowering gift we can give our clients – the gift of a voice.
Advance directives legally document your preferences so your wishes can be honored even when illness or injury leaves you unable to make your own healthcare decisions. Whether you cherish every moment of life or prioritize comfort over longevity, your values shape the medical care you receive through well-planned advance directives.
This article will explore the three main types of advance directives used in North Carolina — living wills, healthcare power of attorney, and MOST forms.
An advance directive is a legal document that goes into effect if you become incapacitated and unable to make your own medical decisions. It provides instructions for your family and doctors on the types and extent of care you wish to receive.
Advance directives empower you to retain control over your medical treatment even when you can no longer actively make decisions.
There are three types of advance directives that serve different purposes:
While each document has a distinct purpose, together, they ensure your medical wishes are honored and your voice is heard when you need it most.
A living will is a written document outlining your preferences for medical care and life-sustaining treatment if you become terminally ill or permanently unconscious. As of 2023, every US state has enacted legislation recognizing living wills as legally binding.
Living wills only take effect when your attending physician determines that you lack decision-making capacity and have a terminal condition or permanent unconsciousness. At that point, your living will become active, and medical staff must follow your documented wishes for treatment and end-of-life care.
In your living will, you can specify preferences regarding:
The benefit of a clearly written living will is that your family and doctors can avoid guessing what you would want. Your care aligns with your values.
A durable power of attorney for healthcare authorizes someone you trust to make medical decisions for you if you lose the ability to do so yourself. This person is referred to as your healthcare agent or healthcare proxy.
Your designated agent can interpret your wishes for care and act in your best interest when situations arise that your living will does not explicitly address. Rather than merely following written instructions, your healthcare agent can help ensure you get the care you want based on familiarity with your values.
The document grants your healthcare agent broad powers, including:
Typically, the power of attorney only becomes effective if your physician determines you lack decision-making capacity. You can also stipulate conditions like “in the event of an injury” or “if I become terminally ill.”
A DNR (Do Not Resuscitate) form is a document you can receive from your doctor, not from an attorney. It is like a prescription and addresses medical interventions and resuscitation. A more detailed version is the MOST form.
A Medical Order for Scope of Treatment (MOST) form documents your wishes regarding medical interventions and resuscitation. It translates your treatment preferences into a medical order.
To complete a MOST form, you or your healthcare agent will have conversations with your doctor or other healthcare provider. You’ll discuss your goals and values and determine which life-sustaining treatments you want. The medical provider then documents your wishes as medical orders on the bright pink MOST form.
A MOST form typically includes orders regarding:
The benefit of MOST forms is that they provide clear guidance to emergency medical personnel. The pink form is easily recognized and helps ensure your treatment preferences are honored across care settings.
If you become unable to make your own medical decisions and have not made your wishes known through advance directives, your healthcare will be determined by state law and medical professionals or a family relative that you may or may not approve of.
This default decision-making process has several downsides:
Advance directives prevent these scenarios by clearly stating your preferences. Work with an experienced attorney to put your voice on paper while you still can.
If you don’t yet have advance directives or need to update existing documents, our attorneys can guide you through the process. At Johnson Legal, we help our clients:
Advance care planning ensures your values shape the medical care you receive. Contact us today to discuss creating or updating your advance directives.
Shane T. Johnson is the CEO and Managing Partner of Johnson Legal, an estate planning and business law firm in Wilmington, NC. With years of experience in estate and business law, he has zealously represented clients in various legal matters, including small business formation and purchasing, estate planning, probate, domestic violence, and other legal cases.
Shane received his Juris Doctor from the University of Wyoming and is a member of the North Carolina Bar Association. He has received numerous accolades for her work, including being named among the Best Probate Lawyers in Wilmington by Expertise.com.
