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FirstHealth of the Carolinas
Legally smart things to do By Annette Dunlap

By Annette Dunlap


Most of us worry about being a burden to our loved ones when we go to the hospital. We want to ease their anxiety and assure them that we will be all right.

One way to offer additional assurance is to file advance medical directives before we need special treatment or a surgical procedure.

Advance directives are valuable tools that protect our right to make medical choices that affect our lives. These documents also reduce the stress on family members, because we have expressed our own wishes regarding our medical treatment, and they may help prevent potential legal complications.

State law governs the validity of advance directives. In North Carolina, there are several different documents that address health and medical decisions: medical directives, do not resuscitate orders, Health Care Power of Attorney, a power of attorney that gives another person access to your medical information under the HIPAA laws, and Declaration of a Desire for a Natural Death or “Living Will.”

In many cases, a physician must determine whether or not a patient’s condition is determined to be terminal and incurable or if the patient is in a persistent vegetative state before the provisions of the directives can be activated.

“Each of these documents requires thought and consideration,” says Victoria P. Brenner, a local estate planning attorney who encourages people to consider drawing up advance directives as part of overall estate planning.

Medical directives
Medical directives outline the steps that a person wishes to have taken should he or she ever become incapacitated and if physicians do not expect the individual to recover. They are the individual’s directions regarding specific treatments.

Information covered in a medical directive outlines the treatment a person does and does not want, such as certain forms of pain relief, dialysis, feeding tubes, respirators or cardiopulmonary resuscitation (CPR.)

DNR orders
“The ‘do not resuscitate’ (DNR) order is a special order that can only be written and placed on the patient’s medical record by a physician,” says Chuck Moak, a patient services representative with FirstHealth Moore Regional Hospital.

A DNR order states that CPR will not be used on a patient when his or her heart or breathing stops. According to Moak, patients who have completed the advance directive package often think they can just tell medical personnel that they do not want to be resuscitated. But that’s not sufficient. A DNR must be written by a physician, who will typically issue the order when he or she has determined that a patient is in a terminal, incurable or persistent vegetative state. The physician does so with the patient’s knowledge or with the knowledge of the patient’s health care power of attorney.

Moak encourages patients who do not want to be resuscitated to discuss their wishes with their physician. And a note: DNR orders often do not apply during surgery.

Health care power of attorney
“The Health Care Power of Attorney appoints someone to make health and medical decisions for you if you become incapacitated or incompetent,” says Brenner.

Its provisions are enacted when certain medical conditions prevent an individual from expressing his or her own wishes. The physician must state, in writing, that the patient can no longer understand sufficiently, or does not have the mental capacity to make decisions regarding his or her health care.

Irreversible brain damage, a permanent coma or a terminal illness that may lead to a loss of consciousness are some of the conditions under which a Health Care Power of Attorney would be used.

HIPAA power of attorney
Under current federal law (part of the Health Insurance Portability and Accountability Act or HIPAA), medical information is confidential between the patient and the health care provider. However, individuals who feel that it is a good idea to allow another person access to their medical records can grant a power of attorney to a person of their choice.

For more information on HIPAA and what it means to you as a consumer of health care, please see the related story Your right to privacy.

“Living Wills”
In North Carolina, the formal term for a “living will” is “Declaration of a Desire for a Natural Death.” This document allows individuals to state their wishes regarding the use of extraordinary measures, artificial nutrition and/or hydration to keep them alive.

Before a “living will” can be executed, a physician has to determine that the individual in question is terminal or in a persistent vegetative state. Typically, this means that the person has lost the ability to think or reason and will die if the artificial means of keeping him or her alive is removed.

Individuals must be mentally competent when they draw up a living will, and the document must be signed and dated in front of two witnesses and a notary.

“The law is very specific about who is eligible to witness the signing of a living will,” says Moak. “In general, none of the witnesses can be in a position to benefit from the person’s death, so a person’s family members, physician or health care provider or beneficiaries named in other wills—anyone with a vested interest—cannot serve as witnesses.”

Put documents in place
Once you have completed your advance directives, put them in place so that they will be accessible when needed. Also place a copy of your directives with your medical record at your hospital.

FirstHealth offers a kit that explains advance directives and provides forms for you to document your wishes regarding your care.

Family members should be able to locate copies of the document, and the individual (or individuals) granted health care power of attorney and power of attorney should also have copies.

If you use an attorney to draw up your documents, keep a copy on file with that office, too.

Finally, be aware that these documents are not reciprocal from state to state. That means that a document prepared in one state may not meet the requirements of another and vice versa.