Short Answer

In North Carolina, a living will (Advance Directive for a Natural Death) states your end-of-life treatment choices; a health care power of attorney (HCPOA) names a person to make medical decisions for you if you cannot. A living will guides specific life-prolonging measures in defined medical conditions, while an HCPOA covers broader health decisions, including end-of-life choices, through your chosen agent. Both require two qualified adult witnesses and a notary.

Understanding the Problem

You want to know whether you need a living will, a health care power of attorney, or both under North Carolina law. The decision point is this: do you want to put your own end-of-life instructions in writing (living will), appoint a trusted decision-maker to speak for you if you cannot (HCPOA), or both? You face upcoming surgery, so timing and proper signing are important.

Apply the Law

North Carolina recognizes two separate advance directives. A living will lets you accept or refuse life-prolonging measures if you are terminally ill or permanently unconscious (and in certain other narrow situations). A health care power of attorney appoints an agent to make health decisions any time you lack capacity; it is broader and includes end-of-life choices. You sign both before any loss of capacity, with two qualified adult witnesses and a notary. These documents are not filed with a court; share them with your health care providers and your agent. During the COVID-19 emergency, temporary video witnessing/notarization was allowed, but that authority expired; current notary and witnessing rules must be followed in person unless the notary law otherwise permits, and witness presence rules still apply.

Key Requirements

• Living will scope: Your written choices about life-prolonging measures apply when you meet specific medical conditions (for example, terminal condition or permanent unconsciousness).
• HCPOA scope: Names an agent to make health decisions whenever you lack capacity; includes end-of-life decisions guided by your wishes.
• Execution for both: Sign while competent, in the presence of two qualified adult witnesses, and acknowledge before a notary.
• Who may witness: Witnesses cannot be certain relatives or heirs, your attending provider or facility staff, or other disqualified persons; do not use your named health care agent as a witness.
• When they take effect: Living will applies only in defined conditions; HCPOA becomes effective when you cannot make or communicate health decisions (typically determined by your attending clinician).
• Revocation: You may revoke either document at any time; if your agent is your spouse, divorce generally ends that agent’s authority unless you state otherwise.
• Forum and records: No court filing; provide copies to your doctors, hospital, and agents; you may also use the State’s advance directive registry.

What the Statutes Say

• North Carolina Gen. Stat. § 90-321 (Advance directive for a natural death) – Sets living will content, execution, and revocation rules.
• North Carolina Gen. Stat. § 32A-16 (Health care power of attorney; execution) – Defines who can sign, witness qualifications, and notarization.
• North Carolina Gen. Stat. § 32A-20 (Health care agent’s authority) – Describes the agent’s powers and when they may act.
• North Carolina Gen. Stat. § 10B-25 (Emergency video notarization) – Temporary COVID-19 video notarization authority that expired December 31, 2021.

Analysis

Apply the Rule to the Facts: Because you face surgery and currently have capacity, you can sign both documents now. Naming your friend as primary health care agent and your adult child as backup is allowed; ensure neither serves as a witness. Execute both with two qualified adult witnesses and a notary. If you hoped to handle signing entirely online, note that the prior emergency video notarization/witnessing has expired; arrange an in-person signing that complies with current North Carolina rules.

Process & Timing

1. Who files: You (the principal). Where: No court filing; keep originals and share copies with your doctors and agents; you may submit to the North Carolina advance directive registry. What: Use the statutory “Advance Directive for a Natural Death” form and the statutory “Health Care Power of Attorney” form (as set out in the General Statutes). When: Before surgery while you clearly have capacity.
2. Arrange an in-person signing with two qualified witnesses and a notary. Plan for 20–40 minutes and confirm witness eligibility (not relatives/heirs/treating providers or facility staff).
3. Distribute copies to your health care agent, backup agent, primary care physician, and hospital. Keep originals accessible. Consider adding wallet cards and uploading to the state registry your providers can check.

Exceptions & Pitfalls

• Using the wrong witnesses. If a witness is a relative, an heir, your agent, your attending provider, or facility staff, the document can be invalid. Screen witnesses carefully.
• Assuming online execution is fine. North Carolina’s emergency video notarization/witnessing expired; follow current in-person witnessing rules.
• Naming a treating provider or facility employee as agent. Avoid this; restrictions apply and it creates conflicts.
• Not sharing the documents. If your providers and agent don’t have copies, your wishes may be delayed in an emergency.
• Life‑prolonging limits. A living will only applies in specific medical conditions; for everything else, your HCPOA agent makes decisions guided by your wishes.

Talk to a Estate Planning Attorney

If you’re preparing a living will and health care power of attorney before surgery, our firm can help you draft, coordinate proper witnessing/notarization, and share the documents with your care team. Call us today to schedule a consultation.

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.