Living Wills | Advanced Health Care Directives
Our NJ estate planning attorneys assist individuals with living wills and advanced health care directives. The law pertaining to living wills and health care proxies is not uniform among the states. States are free to determine what elements they will demand for an advance directive to be valid in their state. Therefore, it is necessary to deal with the laws of each state individually. Only a brief overview of the laws dealing with advance directives in New Jersey is addressed within the context of this web site.
WHY ARE LIVING WILLS IMPORTANT?
A living will allows a person to express his/her feelings about life support treatments long after they are no longer able to speak or think. No two people are the same, and therefore, opinions regarding treatments will obviously differ. The living will is a document which can adapt to the different philosophies maintained by various individuals. It allows for as much or as little life-support treatment as the maker desires. By executing a living will, an individual can protect their right to choose. Without such a document, decisions concerning life support treatments will be left to health care professionals. Although knowledgeable and qualified to administer treatments, they cannot know, and subsequently cannot respect your wishes as they pertain to life support measures.
WHAT ARE ADVANCE DIRECTIVES?
Advance directives are any written directions you prepare that say what kind of medical care you want in the event you become unable to make decisions for yourself. There are two types of advance directives: (1) instruction directives, and (2) proxy directives. It is your decision whether to have both kinds or to just have one of them.
Instruction directives are what we refer to when we use the term “living will.” They specify in advance, what life support treatments you wish to accept or refuse and the circumstances in which you want your wishes implemented. These instructions then serve as a guide to those responsible for your care.
Proxy directives are often referred to as durable powers of attorney for health care (DPAHC). They appoint an agent, or representative, to make health care decisions on the maker’s behalf, in the event of loss of legal capacity.
While they are both types of advance directives, living wills and health care proxies are quite different. To execute a living will, a person simply states what life support treatments are wanted in the event they lose decision-making capacity. In contrast, a health care proxy requires the appointment of an agent. The agent is designated by the maker to make virtually all health care decisions if the maker should become incapacitated. The living will states what the patient’s wishes are and how to honor those wishes. The proxy instrument simply appoints a representative to make decisions for the patient whenever such decisions become necessary. The health care proxy is more flexible than the living will since it allows the agent to make decisions as the specific situations arise. The living will, on the other hand, states the desired treatments and does not allow for unforeseen events. Living wills and health care proxies are important instruments. Both should be executed to provide the maximum protection possible in the event of a tragedy.
In addition to the maker keeping a copy of the proxy directive, copies should be distributed to the primary agent, the secondary agent, and the personal physician. Family members, friends, or anyone else who is likely to be involved in your health care treatments should be given a copy.
A competent adult may execute an advance directive at any time. The instrument must be signed by, or at the direction of, the maker. This signing must be witnessed and signed by either two adult witnesses or a notary public or lawyer. The witnesses must attest to the sound mind of the declarant, and that the instrument was executed free of duress or undue influence. One who is designated as an agent in a proxy directive is ineligible to act as a witness. In New Jersey the agent is also referred to as a health care representative. A female declarant may wish to include what effect the advance directive shall have in the event that she is pregnant. New Jersey recognizes advance directives executed in other states as long as they comply with the laws of that state or the state of New Jersey. Advance directives executed in another country will be recognized in New Jersey as long as they conform to the laws of that country or the laws of New Jersey, and are not contrary to the public policy of the state of New Jersey.
Both an instruction directive and a proxy directive can be modified at any time, so long as the declarant still has decisional capacity. When changes are made, they should be witnessed and dated. If changes are frequently made, it may be easier to simply execute a new document.
An advance directive may be revoked at any time. Revocation takes effect upon oral or written notification to a health care representative, doctor, nurse, or any other health care professional or other reliable witness. Any act which evidences a desire to revoke the instrument will also be seen as a valid act for purposes of revocation. The execution of subsequent instruments will also act to revoke any previous such documents.
In the State of New Jersey, if your wishes are made clear then they must be respected. A doctor, however, cannot be forced to comply with the withholding or withdrawing of any life support measures that are contrary to his/her beliefs, professional or otherwise. If such a case arises, the doctor or health care professional must express his/her inability to carry out the terms of the directive to the designated medical official as soon as possible. In addition, he/she must facilitate the transfer of the patient to another physician who will be able to carry out the terms of the instrument. A private, religiously-affiliated institution may adopt their own policies regarding the withdrawal or withholding of life sustaining treatments. Such policies must be in writing and communicated to the patient before arrival, upon arrival, or as soon after arrival as practicable. In the event that the institution’s policies conflict with the patient’s legal rights, the institution must take the necessary steps to transfer and accommodate the patient at another facility.
Contact our NJ estate planning attorneys today to schedule an appointment to discuss a living will or health care directive.