Handwritten Instructions: The Strongest Proof

A Guide to Your Health Care Power of Attorney and Advance Directive Regarding a Natural Death

Before signing a Health Care Power of Attorney ("HCPOA") or an Advance Directive Regarding a Natural Death ("Living Will"), many people research, consult loved ones, and clarify their wishes. Typing your initialed selections and instructions in advance may seem practical for clarity, efficiency, and neatness.

However, this shortcut is a significant mistake. Typing your initialed selections and instructions before your signing appointment, instead of handwriting them in front of your Witnesses and Notary, can undermine the legal protections these documents are meant to provide.

Here is why this process matters and why following it correctly is crucial for you and your loved ones.

What These Documents Actually Do

First, it is important to understand the function and purpose of these documents.

Your HCPOA appoints a trusted Agent to make medical decisions on your behalf if you become unable to do so. Your Living Will outlines your preferences regarding life-prolonging measures (such as CPR, ventilators, artificial nutrition/hydration (tube feeding), kidney dialysis, and blood transfusions) if you are in the end stages of an incurable/irreversible illness, prolonged unconsciousness, and/or substantial and irreversible loss of cognitive ability. These documents represent your wishes when you cannot speak for yourself.

These are not routine administrative forms. They are among the most important legal documents you will create, and they have specific requirements for witnesses and notarization.

Why Witnesses and a Notary are Present

North Carolina requires two Witnesses and a Notary for these documents. Witnesses confirm that you made your own decisions and signed willingly. To avoid conflicts of interest, Witnesses must be disinterested third parties, not spouses, close relatives, potential heirs, or your health care professionals. These rules ensure witnesses have no personal or financial interest in your health care decisions. The Notary, commissioned by the state, verifies your identity, confirms your voluntary decisions, and authenticates your signature.

A key point is that these protections apply only to events that occur in the room at the time of signing. Waiting to complete your HCPOA and Living Will until you are with the required Witnesses and Notary ensures independent confirmation of your mental competence, legal age, and voluntary action.

If your initialed selections and instructions are typed and completed before others are present, the Witnesses and Notary cannot confirm that you wrote them, understood them, or did so freely. They can only witness your signature, not your choices and intentions about the content.

The Undue Influence Problem

Documents with pre-typed initialed selections and instructions create significant legal and personal vulnerabilities.

Legal safeguards for HCPOAs and Living Wills are designed to protect vulnerable individuals from harm, including diminished capacity or undue influence. These risks are real. The elderly, seriously ill, those with cognitive decline, and individuals dependent on others are especially susceptible to outside influence.

Courts consider a person's vulnerability, mental state, dependency, and sources of influence when evaluating undue influence.

If your initialed selections and instructions are typed and completed in advance, those protections do not apply to the content. It is unclear who typed them, who chose the wording, or whether the choices were truly yours. The witnesses and notary cannot attest to this, as they were not present during that process.

Handwriting your initials and instructions at the signing appointment, in front of Witnesses and a Notary, creates a clear and reliable record. Everyone present can observe you completing the form, your demeanor, and your intent. They witness your decision-making, not just your signature.

Your Handwriting Is Evidence of Your Mind

There is also an important non-legal aspect. Handwriting provides evidence of the writer's physical presence and state of mind, which typed text cannot offer.

Handwriting your instructions during the signing appointment demonstrates your ability and intent. It shows you were present, able to write, and fully engaged in the process. The unique traits of your handwriting, such as pressure, speed, and style, are difficult to imitate and serve as strong personal identifiers. If your documents are ever challenged in court or among family, handwritten instructions recorded at the time of signing provide much stronger proof of authenticity than typed text, which anyone could have prepared at any time.

The Practical Objection — And Why It Doesn't Hold Up

Common concerns include writing slowly, having hard-to-read handwriting, or difficulty articulating wishes under pressure. These concerns are understandable and have practical solutions that do not require abandoning handwriting at the signing.

You should prepare thoroughly in advance: review the forms, consider your wishes, discuss them with your doctor and chosen Agent(s), and use the provided cheat sheets to outline your preferences. Preparation is encouraged!

The main goal of these documents is to clarify your values and wishes for others to follow if they must make decisions for you. Your handwritten instructions do not need to be lengthy; they should be clear, honest, and personal. A few sentences written at the appointment carry more legal and moral weight than extensive text prepared in advance.

When Someone Cannot Physically Handwrite Their Wishes

If you are genuinely unable to write due to a physical disability, injury, or medical condition, or if your handwriting is truly illegible due to illness, unsteadiness, or age, you may provide explicit verbal directions to a disinterested third party (who is not a Witness or Notary) regarding what to handwrite on your behalf during the signing appointment. The key principle remains the same: the content of the document must be generated in the room, under the observation of the witnesses and notary, so that the safeguards of the signing process apply to the substance of your wishes, not just the signature. If this applies to you, please let us know in advance of your signing appointment so we can make the necessary accommodations.

Why This Matters Most for the Most Vulnerable

Many individuals executing these documents are at the greatest risk from pre-typed instructions. This includes elderly parents assisted by children, seriously ill patients reliant on caregivers, and those with memory decline who depend on others for support.

For these individuals, the signing appointment with Witnesses and a Notary may be one of the few times an independent third party can confirm that the choices are genuinely their own. The more of the document that is completed in front of these neutral observers, the stronger the protection for the signer.

The Bottom Line

Your Health Care Power of Attorney and Advance Directive Regarding a Natural Death are among the most personal and important legal documents you will sign. The procedural safeguards exist to protect your voice and autonomy when you are least able to do so yourself.

Pre-typing your instructions before the signing appointment removes the most important part of the process from the safeguards of the signing room. This leaves your decisions unwitnessed, unverified, and vulnerable to challenge.

Handwrite your initialed selections and instructions at the appointment in pen, in front of your Witnesses and Notary. Do so deliberately, in your own words and at your own pace.

This simple act is the clearest evidence of your wishes. Ultimately, that is the purpose of these documents.

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Disclaimer: This article was written by Attorney Heather Hazelwood of Hazelwood Law PLLC dba Ampersand Law. This article does not contain legal advice and is not a substitute for obtaining legal counsel. It is offered for general information purposes only.