H.B. 739
GENERAL ASSEMBLY OF NORTH CAROLINA
Apr 18, 2023
SESSION 2023 HOUSE PRINCIPAL CLERK
H D
HOUSE BILL DRH40135-MG-86
Short Title: Update Reqs./Advance Health Care Directives. (Public)
Sponsors: Representative Sasser.
Referred to:
1 A BILL TO BE ENTITLED
2 AN ACT UPDATING REQUIREMENTS FOR HEALTH CARE POWERS OF ATTORNEY
3 AND ADVANCE HEALTH CARE DIRECTIVES; AND AUTHORIZING THE
4 SECRETARY OF STATE TO RECEIVE ELECTRONIC FILINGS OF ADVANCE
5 HEALTH CARE DIRECTIVES.
6 The General Assembly of North Carolina enacts:
7
8 PART I. HEALTH CARE POWERS OF ATTORNEY
9 SECTION 1.1. G.S. 32A-16(3) reads as rewritten:
10 "(3) Health care power of attorney. – Except as provided in G.S. 32A-16.1, a
11 written instrument that substantially meets the requirements of this Article,
12 that is signed in the presence of two qualified witnesses, and witnesses or
13 acknowledged before a notary public, pursuant to which an attorney-in-fact or
14 agent is appointed to act for the principal in matters relating to the health care
15 of the principal. The notary who takes the acknowledgement may but is not
16 required to be a paid employee of the attending physician or mental health
17 treatment provider, a paid employee of a health facility in which the principal
18 is a patient, or a paid employee of a nursing home or any adult care home in
19 which the principal resides."
20 SECTION 1.2. G.S. 32A-25.1(a) reads as rewritten:
21 "(a) The use of the following form in the creation of a health care power of attorney is
22 lawful and, when used, it shall meet the requirements of and be construed in accordance with the
23 provisions of this Article:
24
25 HEALTH CARE POWER OF ATTORNEY
26
27 NOTE: YOU SHOULD USE THIS DOCUMENT TO NAME A PERSON AS YOUR
28 HEALTH CARE AGENT IF YOU ARE COMFORTABLE GIVING THAT PERSON
29 BROAD AND SWEEPING POWERS TO MAKE HEALTH CARE DECISIONS FOR
30 YOU. THERE IS NO LEGAL REQUIREMENT THAT ANYONE EXECUTE A
31 HEALTH CARE POWER OF ATTORNEY.
32
33 EXPLANATION: You have the right to name someone to make health care decisions for you
34 when you cannot make or communicate those decisions. This form may be used to create a health
35 care power of attorney, and meets the requirements of North Carolina law. However, you are
36 not required to use this form, and North Carolina law allows the use of other forms that meet
*DRH40135-MG-86*
 General Assembly Of North Carolina Session 2023
1 certain requirements. If you prepare your own health care power of attorney, you should be very
2 careful to make sure it is consistent with North Carolina law.
3
4 This document gives the person you designate as your health care agent broad powers to make
5 health care decisions for you when you cannot make the decision yourself or cannot communicate
6 your decision to other people. You should discuss your wishes concerning life-prolonging
7 measures, mental health treatment, and other health care decisions with your health care agent.
8 Except to the extent that you express specific limitations or restrictions in this form, your health
9 care agent may make any health care decision you could make yourself.
10
11 This form does not impose a duty on your health care agent to exercise granted powers, but when
12 a power is exercised, your health care agent will be obligated to use due care to act in your best
13 interests and in accordance with this document.
14
15 This Health Care Power of Attorney form is intended to be valid in any jurisdiction in which it
16 is presented, but places outside North Carolina may impose requirements that this form does not
17 meet.
18
19 If you want to use this form, you must complete it, sign it, and have your signature witnessed by
20 two qualified witnesses and or proved by a notary public. Follow the instructions about which
21 choices you can initial very carefully. Do not sign this form until two witnesses and or a notary
22 public are present to watch you sign it. You then should give a copy to your health care agent
23 and to any alternates you name. You should consider filing it with the Advance Health Care
24 Directive Registry maintained by the North Carolina Secretary of State:
25 http://www.nclifelinks.org/ahcdr/State.
26
27 …
28
29 By signing here, I indicate that I am mentally alert and competent, fully informed as to the
30 contents of this document, and understand the full import of this grant of powers to my health
31 care agent.
32
33 This the _____ day of ______________, 20____.
34
35 ________________________(SEAL)(SIGNATURE)
36
37 I hereby state that the principal, _______________, being of sound mind, signed (or directed
38 another to sign on the principal's behalf) the foregoing health care power of attorney in my
39 presence, and that I am not related to the principal by blood or marriage, and I would not be
40 entitled to any portion of the estate of the principal under any existing will or codicil of the
41 principal or as an heir under the Intestate Succession Act, if the principal died on this date without
42 a will. I also state that I am not the principal's attending physician, nor a licensed health care
43 provider or mental health treatment provider who is (1) an employee of the principal's attending
44 physician or mental health treatment provider, (2) an employee of the health facility in which the
45 principal is a patient, or (3) an employee of a nursing home or any adult care home where the
46 principal resides. I further state that I do not have any claim against the principal or the estate of
47 the principal.
48
49 Box #1
50 If you elect to have your declaration witnessed, complete the following section:
51
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 General Assembly Of North Carolina Session 2023
1 Date: _____________________________ Witness: ___________________________
2
3 Date: _____________________________ Witness: ___________________________
4
5 ________________COUNTY, _________________STATE
6
7 Sworn to (or affirmed) and subscribed before me this day by _____________________
8 (type/print name of signer)
9
10 ______________________
11 (type/print name of witness)
12
13 ______________________
14 (type/print name of witness)
15
16 Box #2
17 If you elect to have your declaration notarized, have the following section completed by a
18 qualified notary public:
19
20 Date: ___________________________ ______________________________
21 (Official Seal) Signature of Notary Public
22
23 __________________, Notary Public
24 Printed or typed name
25
26 My commission expires: __________"
27
28 PART II. ADVANCE HEALTH CARE DIRECTIVES
29 SECTION 2.1. G.S. 90-321(c)(3) reads as rewritten:
30 "(3) Except as provided in G.S. 90-321.1, that has been signed by the declarant in
31 the presence of a notary public or two witnesses who believe the declarant to
32 be of sound mind and who state that they (i) are not related within the third
33 degree to the declarant or to the declarant's spouse, (ii) do not know or have a
34 reasonable expectation that they would be entitled to any portion of the estate
35 of the declarant upon the declarant's death under any will of the declarant or
36 codicil thereto then existing or under the Intestate Succession Act as it then
37 provides, (iii) are not the attending physician, licensed health care providers
38 who are paid employees of the attending physician, paid employees of a health
39 facility in which the declarant is a patient, or paid employees of a nursing
40 home or any adult care home in which the declarant resides, and (iv) do not
41 have a claim against any portion of the estate of the declarant at the time of
42 the declaration; andor"
43 SECTION 2.2. G.S. 90-321(a)(1a) reads as rewritten:
44 "(1a) Declaration. – Except as provided in G.S. 90-321.1, any signed, witnessed,
45 dated, and proved signed, witnessed or proved, and dated document meeting
46 the requirements of subsection (c) of this section."
47 SECTION 2.3. G.S. 90-321(d1) reads as rewritten:
48 "(d1) The following form is specifically determined to meet the requirements of subsection
49 (c) of this section:
50
51 ADVANCE DIRECTIVE FOR A NATURAL DEATH ("LIVING WILL")
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 General Assembly Of North Carolina Session 2023
1
2 NOTE: YOU SHOULD USE THIS DOCUMENT TO GIVE YOUR HEALTH CARE
3 PROVIDERS INSTRUCTIONS TO WITHHOLD OR WITHDRAW
4 LIFE-PROLONGING MEASURES IN CERTAIN SITUATIONS. THERE IS NO LEGAL
5 REQUIREMENT THAT ANYONE EXECUTE A LIVING WILL.
6
7 GENERAL INSTRUCTIONS: You can use this Advance Directive ("Living Will") form to give
8 instructions for the future if you want your health care providers to withhold or withdraw
9 life-prolonging measures in certain situations. You should talk to your doctor about what these
10 terms mean. The Living Will states what choices you would have made for yourself if you were
11 able to communicate. Talk to your family members, friends, and others you trust about your
12 choices. Also, it is a good idea to talk with professionals such as your doctors, clergypersons,
13 and lawyers before you complete and sign this Living Will.
14
15 You do not have to use this form to give those instructions, but if you create your own Advance
16 Directive you need to be very careful to ensure that it is consistent with North Carolina law.
17
18 This Living Will form is intended to be valid in any jurisdiction in which it is presented, but places
19 outside North Carolina may impose requirements that this form does not meet.
20
21 If you want to use this form, you must complete it, sign it, and have your signature witnessed by
22 two qualified witnesses and or proved by a notary public. Follow the instructions about which
23 choices you can initial very carefully. Do not sign this form until two witnesses and or a notary
24 public are present to watch you sign it. You then should consider giving a copy to your primary
25 physician and/or a trusted relative, and should consider filing it with the Advanced Health Care
26 Directive Registry maintained by the North Carolina Secretary of State:
27 http://www.nclifelinks.org/ahcdr/State.
28
29 My Desire for a Natural Death
30
31 I, ____________________, being of sound mind, desire that, as specified below, my life not be
32 prolonged by life-prolonging measures:
33
34 …
35
36 I hereby state that the declarant, ______________________, being of sound mind, signed (or
37 directed another to sign on declarant's behalf) the foregoing Advance Directive for a Natural
38 Death in my presence, and that I am not related to the declarant by blood or marriage, and I would
39 not be entitled to any portion of the estate of the declarant under any existing will or codicil of
40 the declarant or as an heir under the Intestate Succession Act, if the declarant died on this date
41 without a will. I also state that I am not the declarant's attending physician, nor a licensed health
42 care provider who is (1) an employee of the declarant's attending physician, (2) nor an employee
43 of the health facility in which the declarant is a patient, or (3) an employee of a nursing home or
44 any adult care home where the declarant resides. I further state that I do not have any claim
45 against the declarant or the estate of the declarant.
46
47 Box #1
48 If you elect to have your declaration witnessed, complete the following section:
49
50 Date: _____________________________ Witness: ___________________________
51
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 General Assembly Of North Carolina Session 2023
1 Date: _____________________________ Witness: ___________________________
2
3 ________________COUNTY, _________________STATE
4
5 Sworn to (or affirmed) and subscribed before me this day by _____________________
6 (type/print name of declarant)
7
8 ________________________
9 (type/print name of witness)
10
11 ________________________
12 (type/print name of witness)
13
14
15 Box #2
16 If you elect to have your declaration notarized, have the following section completed by a
17 qualified notary public:
18
19 Date ___________________________ ______________________________
20 (Official Seal) Signature of Notary Public
21
22 __________________, Notary Public
23 Printed or typed name
24
25 My commission expires: _________"
26
27 PART III. ELECTRONIC FILING OF HEALTH CARE POWERS OF ATTORNEY AND
28 ADVANCE HEALTH CARE DIRECTIVES WITH THE NORTH CAROLINA
29 SECRETARY OF STATE
30 SECTION 3.1. G.S. 130A-466 reads as rewritten:
31 "§ 130A-466. Filing requirements.
32 (a) A person may submit any of the following documents and the revocations of these
33 documents to the Secretary of State in electronic or hard copy format for filing in the Advance
34 Health Care Directive Registry established pursuant to this Article:
35 (1) A health care power of attorney under Article 3 of Chapter 32A of the General
36 Statutes.
37 (2) A declaration of a desire for a natural death under Article 23 of Chapter 90 of
38 the General Statutes.
39 (3) An advance instruction for mental health treatment under Part 2 of Article 3
40 of Chapter 122C of the General Statutes.
41 (4) A declaration of an anatomical gift under Part 3A of Article 16 of Chapter
42 130A of the General Statutes.
43 (5) A Health Insurance Portability and Accountability Act (HIPAA) waiver.
44 (b) Any document and any revocation of a document submitted for filing in the registry
45 shall be notarized regardless of whether notarization is required for its validity. This subsection
46 does not apply to a declaration of an anatomical gift described in subdivision (a)(4) of this
47 section.
48 (c) The document may be submitted for filing only by the person who executed the
49 document.
50 (d) The person who submits the document shall supply a return address.
51 (e) The document shall be accompanied by any fee required by this Article."
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 General Assembly Of North Carolina Session 2023
1 SECTION 3.2. G.S. 130A-468 reads as rewritten:
2 "§ 130A-468. Filing of documents with the registry.
3 (a) When the Secretary of State receives a hard copy of a document that may be filed
4 with the registry pursuant to this Article, the Secretary shall create a digital reproduction of that
5 document and enter the reproduced document into the registry database. When the Secretary of
6 State receives a document in electronic format that may be filed with the registry pursuant to this
7 Article, the Secretary shall enter that document into the registry database. The Secretary is not
8 required to review a document to ensure that it complies with the particular statutory
9 requirements applicable to the document. Each document entered into the registry database shall
10 be assigned a unique file number and passwo