Advance Directives

What is an advance directive?

You are encouraged to make instructions for your mental health, substance use or intellectual/developmental disability treatment in advance to use if you become incapable of making such decisions.

The forms used to do this are called advance directives. The N.C. Secretary of State provides forms you can use to create advance directives that meet the requirements of state law.

However, you are not required to use these forms, and N.C. law allows the use of other forms that meet certain requirements. If you prepare your own advance directive, you should be very careful to make sure it is consistent with N.C. law. If you want to use any of the N.C. Secretary of State forms, you must complete the form, sign it and have your signature witnessed by two qualified witnesses and a notary public.

Follow the instructions about which choices you can initial very carefully. Do not sign the form until two witnesses and a notary public are present to watch you sign it.

All of the documents mentioned in this section must be written and signed by you while you still have capacity, understand your condition and your treatment choices and are able to make your wishes known. Keep a copy in a safe place and give copies to your healthcare agent, any alternates, your family, treatment team, doctor and the hospital where you are likely to receive treatment.

You can also arrange to have any of these advance directives filed in the N.C. Advance Health Care Directive Registry maintained by the Secretary of State. There is a $10 fee to register an advance directive. This includes registration, a revocation form, registration card and password.

You have the right to file a grievance with the N.C. Division of Health Service Regulation or with Vaya Health if you think the laws governing the advance directives have not been followed correctly. Even if you do not wish to file these forms as legal documents, the questions on these forms will help you plan for a crisis and think about what kind of treatment you would want.

Our Member Services Department can provide assistance with questions related to advance directives. Call 1-800-849-6127 to ask for help.

There are three types of advance directives in North Carolina. These legal documents allow you to let your wishes be known in the event you are unable to make decisions for yourself. These are: (1) the Psychiatric Advance Directives or the Advance Directive for Mental Health Care, (2) Health Care Power of Attorney and (3) a living will.

The Psychiatric Advance Directive (PAD), or the Advance Directive for Mental Health Care is a legal document that states the instructions for mental health treatment you would want to receive if you are in a crisis and unable to make decisions for yourself. Your service provider or care manager should be able to assist you in the development of this document. The instructions give information about:

  • What you think helps calm you
  • How you feel about seclusion or electroconvulsive therapy
  • What medicines you do not want to take
  • Which doctor you want to be in charge of your treatment

These are decisions you can make in advance of any situation in which you are unable to communicate your wishes about your care and provide specific instructions to be followed by a physician or psychologist. The instructions you include in the PAD will be followed if a physician or eligible psychologist determines that you are incapable of making and communicating treatment decisions. Your instructions may be overridden if you are being held in accordance with civil commitment law.

If your provider does not agree with any parts of the advance directive (due to a “matter of conscience” or personal objection), they must provide (in writing) why they disagree, include detail from the law that allows the objections, and describe the medical conditions involved. You may choose to see a new provider. Your instructions may also not be followed if you are being held in accordance with civil commitment law.

A Health Care Power of Attorney allows you to designate someone who can make decisions for you if you are unable to make your own choices about treatment. This document gives the person you designate as your healthcare agent broad powers to make healthcare decisions for you when you cannot make the decision yourself or cannot communicate your decision to other people. You should discuss your wishes concerning life-prolonging measures, mental health treatment and other healthcare decisions with your healthcare agent. Except to the extent that you express specific limitations or restrictions in this form, your healthcare agent may make any healthcare decision you could make yourself.

A living will is a document that tells others what kind of care you want or if you want to die a natural death if you are incurably sick and cannot receive nutrition or breathe on your own.

All three of these documents must be written and signed by you while you are able to understand your condition and treatment choices and are able to make your wishes known. Two qualified people must witness all three types of advance directives. The living will and the Health Care Power of Attorney must be notarized.

Be sure to keep a copy in a safe place and give copies to your family, your treatment team, your doctor and the hospital where you are likely to receive treatment. You can also have your advance directive filed in a national database or registered with the N.C. Advanced Health Care Directive Registry, which is part of the Department of the North Carolina Secretary of State. There is a $10 fee to register. This includes the registration, a revocation form, registration card and password. You can use the revocation form at any time if you change your mind and your directives.

If your provider does not agree with any parts of the advance directive (due to a “matter of conscience” or personal objection), they must provide (in writing) why they disagree, include detail from the law that allows the objections, and describe the medical conditions involved. You may choose to see a new provider. Your instructions may also not be followed if you are being held in accordance with civil commitment law.

Your advance directives are active until you cancel them. You may cancel or change your advance directives at any time unless you have been declared incompetent. If you cancel or change your advance directives, be sure to communicate the change to anyone who has a copy.