(a)        If the attending physician determines, to a high degree of medical certainty, that a person lacks capacity to make or communicate health care decisions and the person will never regain that capacity, and:

(1)        Repealed by Session Laws 2007-502, s. 12, effective October 1, 2007.

(1a)      That the person:

a.         Has an incurable or irreversible condition that will result in the person’s death within a relatively short period of time; or

b.         Is unconscious and, to a high degree of medical certainty, will never regain consciousness; and

(2)        There is confirmation of the person’s present condition as set out above in this subsection, in writing by a physician other than the attending physician; and

(3)        A vital bodily function of the person could be restored or is being sustained by life-prolonging measures;

(4)        Repealed by Session Laws 2007-502, s. 12, effective October 1, 2007.

then, life-prolonging measures may be withheld or discontinued in accordance with subsection (b) of this section.

(b)        If a person’s condition has been determined to meet the conditions set forth in subsection (a) of this section and no instrument has been executed as provided in N.C. Gen. Stat. § 90-321, then life-prolonging measures may be withheld or discontinued upon the direction and under the supervision of the attending physician with the concurrence of the following persons, in the order indicated:

(1)        A guardian of the patient’s person, or a general guardian with powers over the patient’s person, appointed by a court of competent jurisdiction pursuant to Article 5 of Chapter 35A of the N.C. Gen. Stat.; provided that, if the patient has a health care agent appointed pursuant to a valid health care power of attorney, the health care agent shall have the right to exercise the authority to the extent granted in the health care power of attorney and to the extent provided in N.C. Gen. Stat. § 32A-19(b) unless the Clerk has suspended the authority of that health care agent in accordance with N.C. Gen. Stat. § 35A-1208(a).

(2)        A health care agent appointed pursuant to a valid health care power of attorney, to the extent of the authority granted.

(3)        An agent, with powers to make health care decisions for the patient, appointed by the patient, to the extent of the authority granted.

(4)        The patient’s spouse.

(5)        A majority of the patient’s reasonably available parents and children who are at least 18 years of age.

(6)        A majority of the patient’s reasonably available siblings who are at least 18 years of age.

(7)        An individual who has an established relationship with the patient, who is acting in good faith on behalf of the patient, and who can reliably convey the patient’s wishes.

If none of the above is reasonably available then at the discretion of the attending physician the life-prolonging measures may be withheld or discontinued upon the direction and under the supervision of the attending physician.

(c)        Repealed by Session Laws 1979, c. 715, s. 2.

(d)       The withholding or discontinuance of such life-prolonging measures shall not be considered the cause of death for any civil or criminal purpose 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. ?(1977, c. 815; 1979, c. 715, s. 2; 1981, c. 848, s. 5; 1983, c. 313, ss. 2-4; c. 768, s. 5.1; 1991, c. 639, s. 4; 1993, c. 553, s. 29; 2007-502, s. 12; 2017-153, s. 2.6; 2018-142, s. 35(b).)

Terms Used In North Carolina General Statutes 90-322

  • following: when used by way of reference to any section of a statute, shall be construed to mean the section next preceding or next following that in which such reference is made; unless when some other section is expressly designated in such reference. See North Carolina General Statutes 12-3
  • Guardian: A person legally empowered and charged with the duty of taking care of and managing the property of another person who because of age, intellect, or health, is incapable of managing his (her) own affairs.
  • in writing: may be construed to include printing, engraving, lithographing, and any other mode of representing words and letters: Provided, that in all cases where a written signature is required by law, the same shall be in a proper handwriting, or in a proper mark. See North Carolina General Statutes 12-3
  • Jurisdiction: (1) The legal authority of a court to hear and decide a case. Concurrent jurisdiction exists when two courts have simultaneous responsibility for the same case. (2) The geographic area over which the court has authority to decide cases.
  • Power of attorney: A written instrument which authorizes one person to act as another's agent or attorney. The power of attorney may be for a definite, specific act, or it may be general in nature. The terms of the written power of attorney may specify when it will expire. If not, the power of attorney usually expires when the person granting it dies. Source: OCC