Can my siblings make end-of-life care decisions without including me when we are all the next of kin? – North Carolina

Short Answer

In North Carolina, if a parent still has capacity, the parent makes end-of-life and hospice care decisions—not the adult children. If the parent later loses capacity and there is no health care power of attorney or living will, North Carolina law generally looks to a majority of the reasonably available adult children (not one child acting alone) for certain end-of-life decisions. That means siblings usually should not be able to cut one sibling out if the law requires a majority decision, but day-to-day communication problems can still happen unless the parent signs clear paperwork while capacity remains.

Understanding the Problem

In North Carolina hospice situations, the key question is whether a widowed parent who has no written health care documents still has capacity to make and communicate medical decisions. If the parent has capacity, can adult children act as “next of kin” and make end-of-life care decisions without including another sibling, or does the parent remain the decision-maker until capacity is lost?

Apply the Law

North Carolina separates (1) decisions made by a capable patient from (2) decisions made by others only after the patient lacks capacity. When a patient lacks capacity and there is no appointed decision-maker, North Carolina provides a statutory order of who can concur with the attending physician for withholding or discontinuing life-prolonging measures. For adult children at the same priority level, the law generally uses a majority of reasonably available people in that class, rather than allowing a single sibling to decide alone.

Key Requirements

Capacity trigger: The parent remains in charge of medical decisions unless and until the parent lacks capacity to make or communicate health care decisions.
Type of decision matters: The “majority of adult children” rule is most clearly spelled out for decisions about withholding or discontinuing life-prolonging measures, made with the attending physician under the statute.
Majority of reasonably available adult children: If the parent is widowed and later lacks capacity (and there is no guardian or health care agent), the attending physician looks for concurrence from a majority of reasonably available adult children age 18+ for end-of-life life-prolonging-measures decisions.

What the Statutes Say

N.C. Gen. Stat. § 90-322 (Procedures for natural death in the absence of a declaration) – Sets the conditions and the priority list (including a majority of reasonably available adult children) for withholding or discontinuing life-prolonging measures when the patient lacks capacity and has no living will.
N.C. Gen. Stat. § 90-21.17 (Portable DNR and MOST) – Allows a physician to issue a portable DNR or MOST with the consent of the patient, or if the patient lacks capacity, with the consent of the patient’s “representative,” defined by reference to the list in § 90-322.
N.C. Gen. Stat. § 32A-25.1 (Statutory form health care power of attorney) – Provides a lawful form a capable person can sign to name one health care agent (and backups) to make decisions later if capacity is lost.

Analysis

Apply the Rule to the Facts: The parent is described as still having capacity, widowed, and without a health care power of attorney, living will, or guardianship. Under North Carolina law, that generally means the parent is the decision-maker right now, and adult children do not get to override the parent’s choices by claiming “next of kin.” If the parent later loses capacity and a decision involves withholding or discontinuing life-prolonging measures, the attending physician typically must look to a majority of the reasonably available adult children for concurrence, which makes it harder for one sibling (or a minority) to act without including the others.

Process & Timing

Who acts now: The parent (so long as capacity remains). Where: Through the parent’s attending physician and hospice care team in North Carolina. What: The parent can communicate wishes directly and can also sign a Health Care Power of Attorney and, if appropriate, discuss a MOST/DNR with the clinician. When: As soon as possible while capacity is clear.
If capacity is lost: The attending physician documents the lack of capacity and, for certain end-of-life decisions, follows the statutory pathway for concurrence (which may require contacting reasonably available family members in the correct priority group).
If siblings disagree: The care team may pause non-emergency end-of-life decisions, request additional documentation, involve the facility’s ethics process, or (in some situations) the family may need to seek court involvement such as guardianship to appoint a single decision-maker.

Exceptions & Pitfalls

“Next of kin” does not automatically mean “decision-maker” while capacity exists: If the parent can understand and communicate choices, the parent’s decision controls even if adult children disagree.
Not every medical decision uses the same rule: The “majority of adult children” language is spelled out for withholding/discontinuing life-prolonging measures under § 90-322. Other consent situations can be more fact-specific, and hospitals may ask for documentation or follow internal policies when family members conflict.
One sibling may still influence access and communication: Even if the law does not give one sibling sole authority, a sibling who is physically present may be the one talking to staff. Clear, written direction from the parent (including naming an agent and alternates) reduces confusion.
MOST/DNR paperwork can change what happens in an emergency: A portable DNR or MOST is a medical order that emergency personnel may rely on. If the parent lacks capacity, the person consenting as “representative” is tied back to the § 90-322 list, which can create conflict if family members are not aligned.

For more background on planning tools that can prevent family conflict, see medical power of attorney when capacity still exists and who decides in hospice without documents.

Conclusion

In North Carolina, adult children generally cannot make end-of-life care decisions “as next of kin” while a parent still has capacity; the parent remains the decision-maker. If the parent later lacks capacity and there is no health care power of attorney or living will, North Carolina law typically requires concurrence from a majority of reasonably available adult children for withholding or discontinuing life-prolonging measures. The most important next step is to have the parent sign a Health Care Power of Attorney while capacity is clear.

Talk to a Estate Planning Attorney

If a family is dealing with hospice care and siblings disagree about who can make decisions, our firm has experienced attorneys who can help explain North Carolina’s rules and help put the right documents in place while capacity remains. Call us today at [919-341-7055].

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.