Guides · State guides · North Carolina
Health Care Power of Attorney in North Carolina: Forms, Witnesses and the Living Will
North Carolina uses two documents: a health care power of attorney and a living will. Both need two qualified witnesses and a notary. Here is how each works, from the statutes.
By naveen · Updated · How we research our guides
What to know
- A North Carolina health care power of attorney names an agent for health care decisions; it must be signed before two qualified witnesses and acknowledged before a notary (G.S. 32A-16).
- North Carolina's living will, called an Advance Directive for a Natural Death, has the same signing rule: two qualified witnesses plus a notary (G.S. 90-321).
- The agent's authority starts when a physician determines in writing that your parent can't make or communicate health care decisions.
- Statutory forms for both documents are printed in the General Statutes, and using them is optional.
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
A health care power of attorney in North Carolina is a written document in which your parent names someone to make health care decisions if they can't. To be valid it must be signed in the presence of two qualified witnesses and acknowledged before a notary public (G.S. 32A-16). North Carolina's living will is a separate document with the same signing rule, and the two can be combined into one form.
What is a health care power of attorney in North Carolina?
It's a document that appoints a health care agent to act for your parent "in matters relating to the health care of the principal." Any adult "having understanding and capacity to make and communicate health care decisions" may make one (G.S. 32A-17).
North Carolina's statutory form describes what's at stake plainly: you should name someone "IF YOU ARE COMFORTABLE GIVING THAT PERSON BROAD AND SWEEPING POWERS TO MAKE HEALTH CARE DECISIONS FOR YOU." It's separate from a financial power of attorney, which follows different rules; see our North Carolina power of attorney guide for that one.
How is it different from a living will?
A health care power of attorney names a person. A living will records instructions.
| Document | What it does | Statute |
|---|---|---|
| Health care power of attorney | Names an agent to make health care decisions when your parent can't | Chapter 32A, Article 3 |
| Advance Directive for a Natural Death ("Living Will") | Tells providers to withhold or withdraw life-prolonging measures in conditions your parent specifies | G.S. 90-321 |
The living will can apply when your parent has an incurable or irreversible condition expected to cause death within a relatively short period, is unconscious and to a high degree of medical certainty won't regain consciousness, or has advanced dementia or another condition causing substantial, irreversible loss of cognitive ability (G.S. 90-321).
Both forms say the same thing about whether your parent has to sign one. The living will form says, "THERE IS NO LEGAL REQUIREMENT THAT ANYONE EXECUTE A LIVING WILL," and the health care power of attorney form says the same of itself. For the general picture, see power of attorney vs. advance directive.
How do you sign a health care power of attorney in North Carolina?
Your parent signs in the presence of two qualified witnesses, and the signature is acknowledged before a notary public. The statutory form puts it directly: "Do not sign this form until two witnesses and a notary public are present to watch you sign it."
The notary may be, but doesn't have to be, a paid employee of your parent's doctor, a health facility where your parent is a patient, or a nursing home or adult care home where your parent lives. The witnesses are more restricted.
North Carolina's living will follows the same pattern: two qualified witnesses and a notary. A temporary law waived the witness requirement for notarized documents signed during the COVID-19 state of emergency declared in March 2020 (G.S. 32A-16.1); it applied only to documents signed during that emergency.
Who can't be a witness in North Carolina?
A qualified witness must believe your parent is of sound mind and must state that they are not:
- related within the third degree to your parent or to your parent's spouse;
- someone who knows or reasonably expects they'd inherit part of your parent's estate, under a will or under intestacy;
- your parent's attending physician or mental health treatment provider, or a licensed health care provider who is that provider's paid employee;
- a paid employee of a health facility where your parent is a patient, or of a nursing home or adult care home where your parent lives;
- someone with a claim against any part of your parent's estate.
The relationship rule reaches past the immediate family, so each witness has to be checked against the full list.
Who can't serve as the agent?
A person paid to provide health care to your parent can't serve as agent. Any competent adult "who is not engaged in providing health care to the principal for remuneration" can serve as the health care agent (G.S. 32A-18). So a family member can be the agent even though they can't be a witness, but your parent's paid caregiver or doctor can't.
When does the agent start making decisions?
Not when the document is signed. Under G.S. 32A-20, it becomes effective when the physician your parent designates, or the attending physician if none is designated or available, determines in writing that your parent "lacks sufficient understanding or capacity to make or communicate decisions relating to the health care of the principal." It continues during that incapacity.
The living will has its own trigger. The attending physician must determine that your parent's condition is one the declaration covers, and a second physician must confirm it.
Where do you get the official North Carolina forms?
Both statutory forms are printed in the General Statutes on the General Assembly's website:
- the health care power of attorney form in G.S. 32A-25.1;
- the Advance Directive for a Natural Death ("Living Will") form in G.S. 90-321(d1).
Using them is optional. The statute calls the health care power of attorney form "an optional and nonexclusive method," and the living will form can be combined with a health care power of attorney, as long as the combined form is signed, witnessed and proved by a notary under the living will statute.
What happens if your parent has no advance directive?
If your parent can't decide and has no living will, G.S. 90-322 sets an order of people who can concur in withholding or discontinuing life-prolonging measures, when two physicians agree on a qualifying condition:
- a court-appointed guardian of the person or general guardian;
- a health care agent under a valid health care power of attorney;
- another agent your parent appointed with health care powers;
- your parent's spouse;
- a majority of your parent's reasonably available parents and adult children;
- a majority of your parent's reasonably available adult siblings;
- someone with an established relationship who can reliably convey your parent's wishes.
A health care power of attorney lets your parent choose that person instead of leaving it to the order.
How do you revoke a North Carolina advance directive?
Your parent can revoke a living will in any clear way, and a health care power of attorney while still able to make and communicate health care decisions.
- Health care power of attorney. Your parent can revoke it at any time while they can make and communicate health care decisions, by signing and acknowledging a revocation, signing a new health care power of attorney, or any other way of communicating the intent. It takes effect only once your parent communicates it to each named agent and to the attending physician (G.S. 32A-20). A court decree of divorce or separation also revokes a spouse's authority as agent; if the document names a successor agent, the successor serves.
- Living will. Your parent can revoke it "in writing or in any manner by which the declarant is able to communicate the declarant's intent to revoke in a clear and consistent manner, without regard to the declarant's mental or physical condition" (G.S. 90-321(e)).
What questions are worth asking before your parent signs?
- Who would your parent trust to follow their wishes even when the family disagrees?
- Is that person reachable quickly, and willing to do it?
- Who should be the alternate if the first choice can't serve?
- Which two people can witness without falling into any excluded group?
- Has your parent told their doctor which documents exist, and where they're kept?
Frequently asked questions
Does a health care power of attorney need to be notarized in North Carolina?
Yes. Under G.S. 32A-16, a North Carolina health care power of attorney must be signed in the presence of two qualified witnesses and acknowledged before a notary public. It needs both, not one or the other. The notary may be an employee of your parent's doctor or care facility, but the witnesses can't be.
Can a family member witness a health care power of attorney in North Carolina?
Not a close relative or an heir. A qualified witness can't be related within the third degree to your parent or your parent's spouse, and can't expect to inherit from your parent. That excludes your parent's children, siblings and grandchildren, among others. A family member can still be named as the health care agent, since the agent rules are different.
Where can I get the North Carolina health care power of attorney form?
The statutory form is printed in G.S. 32A-25.1 on the North Carolina General Assembly's website, and the living will form is in G.S. 90-321. Both are optional; a different form that meets the statutory requirements also works, as long as it's signed with two qualified witnesses and a notary.
Does a North Carolina health care power of attorney cover finances?
No. A health care power of attorney covers health care decisions. Money and property need a separate financial power of attorney under Chapter 32C, which has its own requirements, including acknowledgment before a notary. Your parent can sign both in the same appointment, but they're separate documents.
Is an advance directive from another state valid in North Carolina?
A living will signed in another state is valid in North Carolina under G.S. 90-321(l) if it appears to have been executed according to that state's requirements or North Carolina's. The statutory living will form adds that places outside North Carolina "may impose requirements that this form does not meet."
Can my parent change their mind after signing?
Yes. A living will can be revoked in any clear way regardless of your parent's condition. A health care power of attorney can be revoked while your parent can still make and communicate health care decisions, and the revocation takes effect once it's communicated to each agent and the attending physician.
Getting started
A health care power of attorney only helps if it's signed while your parent can sign it, with the right witnesses and a notary. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- G.S. 32A-16, Definitions: the two-witness and notary requirement, and who counts as a qualified witness.
- G.S. 32A-18, Who may act as a health care attorney-in-fact: who can serve as the agent.
- G.S. 32A-20, Effectiveness and duration; revocation: when the agent's authority starts and how it's revoked.
- G.S. 32A-25.1, Statutory form health care power of attorney: the optional statutory form.
- G.S. 90-321, Right to a natural death: the living will, its signing rules, form and revocation.
- G.S. 90-322, Procedures in the absence of a declaration: who decides when there's no living will.
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