2005 North Carolina Code - General Statutes § 90-321. Right to a natural death.

§ 90‑321.  Right to a natural death.

(a)       As used in this Article the term:

(1)       "Declarant" means a person who has signed a declaration in accordance with subsection (c);

(2)       "Extraordinary means" is defined as 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;

(3)       "Physician" means any person licensed to practice medicine under Article 1 of Chapter 90 of the laws of the State of North Carolina;

(4)       "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.

(b)       If a person has declared, in accordance with subsection (c) below, a desire that his life not be prolonged by extraordinary means or by artificial nutrition or hydration, and the declaration has not been revoked in accordance with subsection (e); and

(1)       It is determined by the attending physician that the declarant's present condition is

a.         Terminal and incurable; or

b.         Repealed by Session Laws 1993, c. 553, s. 28;

c.         Diagnosed as a persistent vegetative state; and

(2)       There is confirmation of the declarant's present condition as set out above in subdivision (b)(1) by a physician other than the attending physician;

then extraordinary means or artificial nutrition or hydration, as specified by the declarant, may be withheld or discontinued upon the direction and under the supervision of the attending physician.

(c)       The attending physician may rely upon a signed, witnessed, dated and proved declaration, or a copy of that declaration obtained from the Advance Health Care Directive Registry maintained by the Secretary of State pursuant to Article 21 of Chapter 130A of the General Statutes;

(1)       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

(2)       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

(3)       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 (i) are not related within the third degree to the declarant or to the declarant's spouse, (ii) 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, (iii) 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 (iv) do not have a claim against any portion of the estate of the declarant at the time of the declaration; and

(4)       Which has been proved before a clerk or assistant clerk of superior court, or a notary public who certifies substantially as set out in subsection (d) below.

(d)              The following form is specifically determined to meet the requirements above:

“Declaration Of A Desire For A Natural Death”

"I, _________________, being of sound mind, desire that, as specified below, my life not be prolonged by extraordinary means or by artificial nutrition or hydration if my condition is determined to be terminal and incurable or if I am diagnosed as being in a persistent vegetative state. I am aware and understand that this writing authorizes a physician to withhold or discontinue extraordinary means or artificial nutrition or hydration, in accordance with my specifications set forth below:

(Initial any of the following, as desired):

"____     If my condition is determined to be terminal and incurable, I authorize the following:

               ____    My physician may withhold or discontinue extraordinary means only.

               ____    In addition to withholding or discontinuing extraordinary means if such means are necessary, my physician may withhold or discontinue either artificial nutrition or hydration, or both.

"____     If my physician determines that I am in a persistent  vegetative state, I authorize the following:

               ____    My physician may withhold or discontinue extraordinary means only.

               ____    In addition to withholding or discontinuing extraordinary means if such means are necessary, my physician may withhold or discontinue either artificial nutrition or hydration, or both.

"This the ________ day of  ______________________________________________

Signature  ________________________

"I hereby state that the declarant, __________, being of sound mind signed the above declaration in my presence and that I am not related to the declarant by blood or marriage and that I do not know or have a reasonable expectation that I would be entitled to any portion of the estate of the declarant under any existing will or codicil of the declarant or as an heir under the Intestate Succession Act if the declarant died on this date without a will. I also state that I am not the declarant's attending physician or an employee of the declarant's 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 where the declarant resides. I further state that I do not now have any claim against the declarant.

Witness ____________________________________

Witness ____________________________________"

The clerk or the assistant clerk, or a notary public may, upon proper proof, certify the declaration as follows:

“Certificate”

"I, __________, Clerk (Assistant Clerk) of Superior Court or Notary Public (circle one as appropriate) for ________ County hereby certify that __________, the declarant, appeared before me and swore to me and to the witnesses in my presence that this instrument is his Declaration Of A Desire For A Natural Death, and that he had willingly and voluntarily made and executed it as his free act and deed for the purposes expressed in it.

"I further certify that __________ and __________, witnesses, appeared before me and swore that they witnessed __________, declarant, sign the attached declaration, believing him to be of sound mind; and also swore that at the time they witnessed the declaration (i) they were not related within the third degree to the declarant or to the declarant's spouse, and (ii) they did not know or have a reasonable expectation that they would be entitled to any portion of the estate of the declarant upon the declarant's death under any will of the declarant or codicil thereto then existing or under the Intestate Succession Act as it provides at that time, and (iii) they were not a physician attending the declarant or an employee of an attending physician or an employee of a health facility in which the declarant was a patient or an employee of a nursing home or any group‑care home in which the declarant resided, and (iv) they did not have a claim against the declarant. I further certify that I am satisfied as to the genuineness and due execution of the declaration.

"This the ____ day of ______, ____.

Clerk (Assistant Clerk) of Superior Court or Notary Public

(circle one as appropriate) for the County of ___________"

The above declaration may be proved by the clerk or the assistant clerk, or a notary public in the following manner:

(1)       Upon the testimony of the two witnesses; or

(2)       If the testimony of only one witness is available, then

a.         Upon the testimony of such witness, and

b.         Upon proof of the handwriting of the witness who is dead or whose testimony is otherwise unavailable, and

c.         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.

(3)       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

a.         Upon proof of the handwriting of the two witnesses whose testimony is unavailable, and

b.         Upon compliance with paragraph c of subdivision (2) above.

Due 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 within the meaning of this subsection 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 as follows:

“Certificate”

"I __________, Clerk (Assistant Clerk) of Court for the Superior Court or Notary Public (circle one as appropriate) of ________ County hereby certify that based upon the evidence before me I am satisfied as to the genuineness and due execution of the attached declaration by __________, declarant, and that the declarant's signature was witnessed by __________, and __________, who at the time of the declaration met the qualifications of G.S. 90‑321(c)(3).

"This the ____ day of ______, ____

_______________________________________________

Clerk (Assistant Clerk) of Superior Court or Notary Public

(circle one as appropriate) for ________________ County"

 (e)      The above 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. Such revocation shall become effective only upon communication to the attending physician by the declarant or by an individual acting on behalf of the declarant.

(f)        The execution and consummation of declarations made in accordance with subsection (c) shall not constitute suicide for any purpose.

(g)       No person shall be required to sign a declaration in accordance with subsection (c) as a condition for becoming insured under any insurance contract or for receiving any medical treatment.

(h)       The withholding or discontinuance of extraordinary means and/or the withholding or discontinuance of either artificial nutrition or hydration, or both in accordance with this section shall not be considered the cause of death for any civil or criminal purposes nor shall it be considered unprofessional conduct. Any person, institution or facility against whom criminal or civil liability is asserted because of conduct in compliance with this section may interpose this section as a defense.

(i)        Any certificate in the form provided by this section prior to July 1, 1979, shall continue to be valid.

(j)        The form provided by this section may be combined with or incorporated into a health care power of attorney form meeting the requirements of Article 3 of Chapter 32A of the General Statutes; provided, however, that the resulting form shall be signed, witnessed, and proved in accordance with the provisions of this section. (1977, c. 815; 1979, c. 112, ss. 1‑6; 1981, c. 848, ss. 1‑3; 1991, c. 639, s. 3; 1993, c. 553, s. 28; 2001‑455, s. 4; 2001‑513, s. 30(b).)