Effective Monday October 1 North Carolina has new health care advance directive forms. The forms were a joint effort of the North Carolina Medical Society and a committee of the North Carolina Bar Association's Estate Planning and Fiduciary Law Section. General Bar comments were gathered fairly late in the drafting process before handing the product over to the General Assembly.

A number of state senators and representatives specifically requested the Bar and the Medical Society to revisit North Carolina advance directives law as a result of the Terri Schiavo fiasco two years ago in Florida.

The just-replaced sections of North Carolina law left much to be desired. The old Declaration of a Desire for a Natural Death form was terrible. The old Health Care Power of Attorney form wasn't too bad. The new version, however, clarifies the manner in which the Health Care Power of Attorney form and the new Living Will form coordinate.

Gone, now, is the old Declaration of a Desire for a Natural Death. It has been replaced with a form called an Advance Directive for a Natural Death ("Living Will"). As I mentioned, the old DDND form was, well, a stinker. The choices were narrow, the form was confusing, and very easy to execute in a manner that would render a void form. Further, the statute associated with the form used a circular definition of "Persistent Vegetative State" that was absolutely ludicrous.

Sadly, the new Living Will form still confuses and will be much more trouble than most people will want to "mess with". The new form allows much more opportunity to fine tune end of life decision making and allows opt-in and opt-out provisions for (i) artificial hydration, (ii) artificial nutrition, and (iii) cardio pulmonary resuscitation in the event (your choice) (A) "of an incurable or irreversible condition that will result in my death within a relatively short period of time", (B) "I become unconscious and my health care providers determine that, to a high degree of medical certainty, I will never regain my consciousness" or (C) "I suffer from advanced dementia or any other condition which results in the substantial loss of my cognitive ability and my health care providers determine that, to a high degree of medical certainty, this loss is not reversible."

During the drafting stages I was assured by committee members (medical and legal) that "advance dementia" is a term of art signifying a highly advanced and soon-to-be-terminal form of dementia. I continue to feel uneasy.

Another section of the statute allows for most of the same decisions to be made by a list of authorized representatives even if a Living Will form has not been completed. Without a Living Will, however, representatives may not make those decisions in the event of "advance dementia" or "substantial loss of cognitive ability" was removed after some fast talking. I WILL take credit for that: No Living Will, no removal of life sustaining procedures in the event of advance dementia. If you care that deeply, do a Living Will.     Terri Schiavo

This is a tough subject, and the climate was highly charged politically during the process. The forms are complex, and nobody seems particularly happy. My guess is that we'll see the issue resurface in a few years.

The best advice I can give you: Regardless of your personal choices, take charge of the process. Make your feelings known, and then follow through. The new forms will work for any set of preferences . . . you'll need to be careful and think about what you are doing.

I have posted the forms on the Mason Law website. You may download them by clicking HERE.

I would enjoy your comments. I am preparing a lecture on the topic for delivery at the Basics of Elder Law continuing legal education program (for lawyers learning about elder law) on October 12. If people are interested I will post a step-by-step audio commentary on the new forms with Power Point slides on the Mason Law website. If I do, I will alert you in the next issue of Elder Law Update.

Bob Mason

Social Security Disability Benefits are available to an individual who has either a medical or mental condition that is expected to remain at a severe level for at least 12 full months, or end in death.  There are two work requirements for Social Security Disability. To be fully insured, an individual must have a minimum of 10 years work (40 quarters), and 5 of those years of work must be recent (within the last 10 years immediately prior to becoming disabled).  Fewer credits are required for younger workers.

Basic information required includes history of medical conditions, treatment sources, job history and education.  Additionally, biographical information (place of birth, marital history, etc.) are also required.

The initial application process takes between 3-5 months on average. Being prepared before filing is key to helping speed up your claim.  Providing copies of your actual medical files, and having complete information together are important steps. 

The local Social Security office is a paper  processing center only.  An employee of the State in the Disability Determination Section makes the actual medical decision.  If approved medically, Social Security processes the claim and issues the benefit.

In the next couple of months we will address additional issues in disability benefits, including onset date, waiting period, worker's compensation offset, appeals, and Medicare.