Under New Jersey estate planning law, a living will, which is legally called an advanced directive, allows a person to give instructions for what care she is to receive her health is extremis. A living will must be in writing, signed and dated before two adult witnesses who attest that the person signing the advanced directive is of sound mind, and is not under duress or undue influence. Alternatively, it may be signed, dated and acknowledged before a New Jersey notary public or a New Jersey attorney.
Under law New Jersey law, a living will becomes effective when it is provided to the physician who has determined that the patient does not have the capacity to make her own health care decision. If at any point the patient regains the ability to make her own health care decisions, the patient regains the legal authority to direct her own care.
The main purposes of the living will are to allow a person to give her instructions or her wishes for when she is unable to do so herself and to appoint an agent to make decisions when she is unable to make her own decisions. The living will may direct that certain life-sustaining treatments be withheld. If, for example, the patient has an incurable or irreversible, severe mental or severe physical condition; is in a state of permanent unconsciousness or profound dementia; is severely injured; and in any of these cases there is no reasonable expectation of recovering and regaining any meaningful quality of life, then the living will may direct that life-sustaining treatments be withheld. New Jersey law provides that the attending physician, if it is consistent with the terms of the advance directive, may issue a “Do Not Resuscitate” order.
There are two types of advanced directives: an instruction directive and a proxy directive. These can be combined into one document. A person can chose to execute both types or either one standing alone.
The instructive directive is what most people think of as a “living will”. It contains instructions for what the person wants to happen in those dire situations and is referred to when she is not capable of making health care decisions for herself.
A proxy directive is a medical power attorney which appoints an agent to make health care decisions when a patient is no longer able to make those decisions for herself. Any competent adult may be appointed as the health care agent. It is often a spouse, parent, child, sibling or other family member, but it does not need to be a family member. When a person’s physician determines that she no longer has the capacity to make her own health care decisions, the health care agent then has the authority to make decisions on behalf of the patient. If the lack of capacity to make health care decisions is not clear, the doctor will be required to obtain confirmation from a second doctor. The health care agent is responsible to make the health care decisions the patient would have made had she had the capacity herself, or if it is unknown what he patient would have decided under the circumstances, the health care agent is responsible to make decisions in the best interest of the patient. The proxy directive is an authoritative source of the patient’s wishes under a variety of circumstances.
New Jersey law specifically shields the patient’s health care agent from liability for decisions made pursuant to the proxy directive so long as the agent performs his duties in good faith. New Jersey law requires that the physician inquire, as appropriate, about the existence of an Advance Directive, and must note its existence in the medical records along with the identity of the patient’s health care agent. The doctor must also attach a copy of the advanced directive to those medical records.
Contact the New Jersey estate planning attorneys at McLaughlin & Nardi at (973) 890-0004 or by e-mail to ensure that your living will effectively communicates your wishes.