Living Wills in New Jersey <\/p>\n
Anyone who cares about the feelings of their family members, or their own final health care treatment, should consider executing a Living Will. It has become an essential element in the practice of Estate Planning Attorneys. <\/p>\n
Why? A Living Will permits the patient to communicate, in advance, the medical care decisions he or she would make if rendered incapacitated, so that their family won\u2019t be put in the difficult position of having to do so for them. <\/p>\n
The recent nationwide controversy caused by the unfortunate situation of a woman in Florida, who did not possess a Living Will, has demonstrated the family pain created by this issue and sparked renewed public interest in the Living Will. Clients from California to New Jersey have contacted Estate Planning Attorneys to learn more about them. <\/p>\n
The Basics: <\/p>\n
The legal name for a Living Will is an Advanced Directive, a document codified nearly 15 years ago by The New Jersey Advanced Directives for Health Care Act. <\/p>\n
In New Jersey, according to the law, an Advanced Directive, or Living Will, in and of itself, is a simple document needing only to be in writing, signed and dated in the presence of two subscribing adult witnesses who must attest to the fact that the person is of sound mind and free from duress and undue influence. Alternatively, it simply may be signed, dated and acknowledged before a notary public, an attorney or other person authorized in New Jersey to administer oaths. <\/p>\n
The Advanced Directive becomes operative when it is transmitted to the attending physician who has determined that the patient lacks the capacity to make a particular health care decision. <\/p>\n
Once made, the patient may revoke the Advanced Directive either by oral or written notification of the revocation to the \u201cHealth Care Representative\u201d, physician, nurse or other health care professional, or by any other act evidencing an intent to revoke the document. In other words, the patient can change his or her mind, at any time, simply by saying so. <\/p>\n
What It Does: <\/p>\n
Consistent with the terms of an Advance Directive, life-sustaining treatment may be withheld or withdrawn from a patient if the life-sustaining treatment is: <\/p>\n
\u00b7 Experimental and not proven therapy, or is likely to be ineffective or futile in prolonging life, or is likely to merely prolong an imminent dying process; <\/p>\n
\u00b7 The patient is permanently unconscious, as determined by the attending physician and confirmed by a second qualified physician; <\/p>\n
\u00b7 The patient is in a terminal condition as determined by the attending physician and confirmed by a second qualified physician, or <\/p>\n
\u00b7 The patient has a serious irreversible illness or condition, and the likely risks and burdens associated with the medial intervention to be withheld or withdrawn may be reasonably judged to outweigh the likely benefits to the patients from such intervention or imposition on an unwilling patient would be inhumane. <\/p>\n
The law allows the attending physician, consistent with the terms of the Advance Directive, to issue a \u201cDo Not Resuscitate\u201d Order. <\/p>\n
Two Types — Instruction and Proxy: <\/p>\n
There are two types of New Jersey Advanced Directive, or Living Will: An Instruction Directive and a Proxy Directive. You may choose to create either one or both. <\/p>\n
The first type, an Instructive Directive is what clients usually mean when referring to a Living Will. It provides instructions and directions regarding health care in the event that the patient subsequently lacks such decision-making capacity. The Instruction Directive may state the person\u2019s general treatment philosophy and objections together with the person\u2019s specific wishes regarding the provision, withholding or withdrawal of any form of health care, including life-sustaining treatment. <\/p>\n
The second type, the Proxy Directive is more similar to a Power of Attorney because it appoints a \u201cHealth Care Representative\u201d to make health care decisions in the event the patient subsequently loses the capacity to make such decisions. <\/p>\n
A person may appoint as his \u201cHealth Care Representative\u201d any competent adult, including a family member, a friend or a religious adviser. Once the person\u2019s attending physician determines that a person lacks decision- making capacity (along with confirmation of another physician, unless that person\u2019s lack of decision-making capacity is clearly apparent), the \u201cHealth Care Representative\u201d has the authority to make health care decisions on behalf of the patient. The \u201cHealth Care Representative\u201d is to make all health care decisions the patient would have made had he or she possessed decision-making capacity, or where the patient\u2019s wishes cannot be determined adequately, to make a decision in the best interest of the patient. <\/p>\n
In carrying out the person\u2019s wishes, the \u201cHealth Care Representative\u201d is to give priority to that patient\u2019s Instruction Directive, if one exists. Also, a Proxy Directive can be written in New Jersey so as to place specific limitations upon the authority of the \u201cHealth Care Representative\u201d. <\/p>\n
Also important to note, the Living Will statute in New Jersey covering Proxy Directives specifically protects the patient\u2019s \u201cHealth Care Representative\u201d from liability. The law states that the \u201cHealth Care Representative\u201d is not imposed with any liability for any portion of the person\u2019s health care costs, not subject to criminal or civil liability for any action performed in good faith and in accordance with the provisions of the act to carry out the terms of the Advance Directive. <\/p>\n
Physician and Hospital Responsibilities: <\/p>\n
Interestingly, the law requires the attending physician to make affirmative inquiry of the patient, his family or others as appropriate under the circumstances, concerning the existence of an Advance Directive. In other words, the attending physician must initiate the question of a Living Will. The attending physician is required to note in the patient\u2019s medical records whether an Advance Directive exists and the name of the patient\u2019s \u201cHealth Care Representative\u201d, if any. If an Advance Directive exists, a copy must be attached to the patient\u2019s medial records. <\/p>\n
Health care institutions including hospitals, nursing homes, home health care agencies and hospice programs are required to adopt policies and practices that are necessary to provide for routine inquiry at the time of admission and other appropriate times concerning the existence and location of an Advance Directive. Moreover, health care institutions must adopt policies and practices necessary to provide appropriate informational materials concerning Advance Directive to all interested patients, their families and their \u201cHealth Care Representatives\u201d, and to assist those patients in discussing the executing an Advance Directive. <\/p>\n
These health care institutions will also be required to adopt policies and practices necessary to educate patients, their families and \u201cHealth Care Representatives\u201d about the availability, benefits and burdens of rehabilitative treatment, therapy and services, included but not limited to family and social services, self-help and advocacy services, employment and community living, and the use of assisting devices. Health care institutions must establish procedures and practices for resolution of the disputes among the patient, and \u201cHealth Care Representative\u201d and attending physician in the event there is disagreement concerning the patient\u2019s decision making capacity or in the interpretation of the Advance Directive concerning the patient\u2019s course of treatment. <\/p>\n
The New Jersey law on Living Wills expressly states that it should not be interpreted to impair the obligations of health care professionals to provide for the care and comfort of the patient and to alleviate pain, in accordance with accepted medical and nursing standards. <\/p>\n
The patient\u2019s family, \u201cHealth Care Representative\u201d, and appropriate others should be informed that if a person has appointed a \u201cHealth Care Representative\u201d and subsequently lacks decisions-making capacity concerning a particular health care decision, the attending physician must obtain the informed consent for, or refusal of, health care from the \u201cHealth Care Representative\u201d after discussing the nature and the consequences of the person\u2019s medical condition, and the risks, benefits and burdens of the proposed health care and its alternatives. However, if the patient is subsequently found to possess adequate decision-making capacity, the patient shall retain legal authority to make the health care decision. <\/p>\n
Moreover, even if the patient lacks decision-making capacity, but nonetheless clearly expresses the wish that medically appropriate measures be utilized to sustain life, that wish shall take precedence over any contrary decision of the \u201cHealth Care Representative\u201d and over any contrary statement in the patient\u2019s Instructive Directive. <\/p>\n
Conclusion: <\/p>\n
The services of an Estate Planning Attorney are not necessarily required in New Jersey to execute a Living Will \u2013 just as they are not required to execute a Real Estate Contract or a Last Will & Testament \u2013 provided the document is in the proper form, correctly drafted, signed and witnessed. However to be sure that a Living Will conforms to New Jersey legal guidelines and that the patient\u2019s wishes in the event of incapacity are clearly expressed \u2013 so as to be understood and followed \u2013 it may be prudent to consult a lawyer experienced in Estate Planning before the occasion arises in which the Living Will is needed.<\/p>\n","protected":false},"excerpt":{"rendered":"
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