Randi Newbery, Estate Planning Lawyer, Livingston, New Jersey (Essex County), (973) 992-5034  
A Wealth of Experience, a Record of Results

Questions & Answers About Living Wills and Health Care Directives

What is the New Jersey Advance Directives for Health Care Act?

It's a law that protects your right to make decisions about your medical treatment. It provides a way to make sure that your wishes are followed if a day should ever come -- and we all certainly hope it doesn't -- when you are no longer capable of participating in decision making. Having your decisions spelled out in a legal document can prevent a lot of pain and confusion for your loved ones. You get to choose a health care representative who will ensure that your wishes are respected. Additionally, your directive provides written guidance as to which medical treatments you would want to have, or prefer to decline. The law is there "to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients."

What is an Advance Directive?

An Advance Directive (also known as an Advance Directive for Health Care) is an umbrella term that can include a number of legal documents, such as an Instruction Directive (also known as a "Living Will"), in which you state your preferences about medical care in advance. An Advance Directive can also include a Proxy Directive (also known as a Medical Power of Attorney or a Health Care Proxy), in which you name the person who will act as your health care representative if you lack decision-making capacity, and who will communicate on your behalf with the medical professionals.

Why does New Jersey have an Advance Directives for Health Care law?

The law was passed to protect "the personal right of the individual patient to make voluntary, informed choices to accept, to reject, or to choose among alternative courses of medical and surgical treatment." Randi advises any competent person over 18 to consider protecting his or her right to make these decisions by executing the legal documents described under the law.

So many terms! What is the difference between a Living Will, a Health Care Proxy, an Instruction Directive, an Advance Directive, a Proxy Directive, and a Medical Power of Attorney?

Yes, all these different names can be confusing. Some people use all of these terms interchangeably but, depending on the purpose of the document, they may be right or wrong. Essentially, there are two critical documents, each with a different purpose. Together, they make up your Advance Directive for Health Care.

First, there is the Instruction Directive. It is often referred to colloquially as a Living Will. The Instruction Directive, or Living Will, is a legal document that provides written information about your preferences regarding health care treatment, including both treatments you would want to have as well as those you would not want to have.

Second, there is the Proxy Directive. It is also called a Medical Power of Attorney or a Health Care Proxy. It is a different legal document in which you name the person whom you have chosen to act as your personal health care representative. Randi Newbery suggests that you also name a successor or alternate agent, in case your first agent is unable to act for any reason.

An Advance Directive is the overall term for both legal documents. It may include both a written Instruction Directive and a written Proxy Directive -- or just one or the other.

Why is it important for me to have an Advance Directive?

Even when people are well, all of the options and choices about medical care and procedures can be confusing and difficult. When a person is seriously ill, the decisions are sometimes overwhelming. The Advance Directive is a gift to your loved ones in their time of need -- one you make when you are well and able to state your wishes yourself, in writing, in a legal document. Clearly communicating your decisions about medical care takes tremendous stress off your loved ones. You have made your decisions, and it's all there in black and white, so that your decisions can be respected and carried out.

What is an Instruction Directive ("Living Will") and why should I -- and every competent person over the age of 18 -- have one?

Whoever you choose to be your proxy should have your decisions about medical treatment in writing, in a legal document. Your Instruction Directive gives guidance to your health care representative concerning your treatment preferences. You can let him or her know which treatments you want, and which you don't want. If you wish to make anatomical gifts, you should include that information, too. If your document is not properly prepared and correctly witnessed, your decisions may not be honored.

What is a Proxy Directive and why should I -- and every competent person over the age of 18 -- have one?

A Proxy Directive is a legal document in which you name someone (your proxy or agent) to be your health care representative in case you should ever become unable, for any reason, to make your own decisions about your medical treatment. We all hope that a time never comes when we are unable to make those decisions for ourselves. But if it should, wouldn't you want someone you trust to be your agent and make sure that your personal preferences about medical treatment are honored? Because it is a legal document prepared by you and your lawyer, a Proxy Directive can help prevent arguments and discord -- and potentially lawsuits -- among family members. That is why everyone should have one.

Can I be required to sign an Advance Directive?

No. And you cannot be refused admission to a hospital, nursing home, or other health care facility because you do not have an Advance Directive. Nevertheless, it is an important legal document for everyone to have.

Does a Living Will have anything to do with my property or possessions?

No. For that, you should discuss a Will, a Durable Power of Attorney, and other estate planning documents with your lawyer. A Durable Power of Attorney lets you choose someone to act on your behalf in business or financial matters or to handle your day-to-day financial activities. (Read more about a Durable Power of Attorney.)

Can I have my lawyer prepare an Instruction Directive without having a Proxy Directive?

Yes. In it, you will give information about your preferences regarding medical treatment. But keep in mind that the Instruction Directive does not include an agent to act on your behalf, should you become unable to do so.

Can I change my Advance Directive for Health Care?

Yes, you may change it as many times as you like, but your new Advance Directive for Health Care must be signed and dated before a notary public or in front of two adult witnesses, not including your proxy (your health care representative), or any alternates you may have named.

How does New Jersey law define decision making capacity?

It is the patient's ability to understand the nature and consequences of any proposed health care decisions, including the benefits and risks of each treatment, the alternatives for any proposed treatment, and to reach an informed decision.

What happens if my agent has been making decisions for me, but I regain my ability to decide for myself?

If you are competent, and the law says that two doctors must make that determination, your health care representative can no longer make decisions on your behalf. You regain your authority to make decisions for yourself.

If I am not competent to make a decision about my health care, is my doctor required to get consent from my health care representative?

Yes, your doctor is required to obtain informed consent except in an emergency.

What qualifies as emergency care?

New Jersey law describes it as "immediate treatment provided in response to a sudden, acute and unanticipated medical crisis in order to avoid injury, impairment or death."

If I have a Health Care Directive set up for another state, will New Jersey doctors and hospitals honor it?

They should, if the directive was prepared in accordance with that state's law. However, if you become a New Jersey resident, you should consider having new documents prepared.

Does New Jersey allow euthanasia to be practiced on people?

No, New Jersey does not allow this practice. The law says, "No individual shall have the right to, nor shall any physician or other health care professional be authorized to engage in, the practice of active euthanasia."

Should I choose my spouse as my health care representative?

You may choose your spouse but you are not obligated to do so. Some people feel that it might be too stressful for their spouse, or there may be other personal or health considerations. The most important thing is to choose someone who will be able to carry out your wishes.

How should I choose my health care representative?

Choosing a person to act as your health care representative is possibly the most important part of your planning. You need to trust that this person has your interests at heart, understands your wishes, and will act accordingly. He or she should be mature and levelheaded, and comfortable with candid conversations. Don't pick someone out of feelings of guilt or obligation. Your health care representative doesn't necessarily have to be a family member, and may not be the same person you choose to handle your financial matters. It may be helpful, but it's not necessary, if the person lives in the same city or state as you do.

Should I discuss my medical preferences with my health care representative and others?

Yes. It is important that your health care representative (and any successor agent you may name) clearly understands your preferences about medical treatment. You may also want to consider informing your doctor and certain family members as well.

Who should have a copy of my Advance Directive?

Your health care representative, an alternate, if you have named one, your doctors, and the health care facility or hospital, at a minimum.

Can I change my mind and cancel my Advance Directive for Health Care?

Yes, but you should notify your doctor, your health care representative, and anyone to whom you may have given a copy. In New Jersey, your cancellation may be made orally or in writing. However, to be sure that your decisions are respected, attorney Randi Newbery suggests that you follow up in writing.

When does my Living Will take effect?

Hopefully, never. But it does become effective once it is properly signed and witnessed. However, no one can make any decisions on your behalf until after two doctors have determined that you are no longer able to make them for yourself.

Why is it important for me to have witnesses when I sign my Advance Directive?

The witnesses confirm that you have freely signed your Advance Directive of your own volition, and that no one is forcing you to sign anything you don't agree with.

Is there anyone who cannot sign as a witness to my Advance Directive?

Yes. The person whom you appoint as your health care representative or any successor agent cannot sign your advance directive as a witness.

Is my health care representative the only one who can speak for me?

Yes. Your directive can request your health care proxy to consult with others (such as family members, clergy, or friends), but ultimately your health care representative is the only one who can make legally binding decisions.

Will having an Advance Directive affect my ability to get or maintain life insurance or health insurance?

No, not under current law.

Will having an Advance Directive affect my ability to qualify for governmental benefits programs?

No, not under current law.

What does life-sustaining treatment mean?

According to New Jersey law, life-sustaining treatment includes "the use of any medical device or procedure, artificially provided fluids and nutrition, drugs, surgery or therapy that uses mechanical or other artificial means to sustain, restore or supplant a vital bodily function, and thereby increase the expected life span of a patient."

When can life sustaining treatment be withheld or withdrawn?

In New Jersey, there are four circumstances under which life sustaining treatment may be withheld or withdrawn:

  • When life sustaining treatment is experimental or likely to be ineffective in prolonging life.
  • When the patient is permanently unconscious.
  • When the patient's condition is terminal.
  • When the patient has a serious, irreversible illness and the likely risks associated with medical intervention outweigh the likely benefits.

How is "permanently unconscious" defined under New Jersey law?

The law describes it as "total and irreversible loss of consciousness and capacity for interaction with the environment."

What is a terminal condition?

The statute describes it as "the terminal stage of an irreversibly fatal illness, disease or condition."

How does the law define a patient?

A patient is "an individual who is under the care of a physician, nurse or other health care professional." The patient may or may not be receiving treatment in a hospital. For example, he or she may be in an assisted living or nursing home facility.

What is a DNR (Do Not Resuscitate) Order?

It is a doctor's "written order not to attempt cardiopulmonary resuscitation ('CPR') in the event the patient suffers a cardiac or respiratory arrest."

What happens if I have let my family know my wishes about medical treatment in writing, but I do not have an Advance Directive for Health Care that meets New Jersey's requirements?

If your document does not meet New Jersey's requirements, your loved ones may have to go to court.

What happens if I have spoken with my family about my wishes regarding medical treatment, but I do not have an Advance Directive for Health Care?

Even if all family members agree about what your wishes were, they still may not be able to have your doctors carry them out without going to court.

Can my health care representative be charged with homicide or assisted suicide for complying with my wishes as outlined in my New Jersey Advance Directive?

No. The law says that "A health care representative shall not be subject to criminal or civil liability for any actions performed in good faith and in accordance with the provisions" of the law.

Can my health care representative or agent be required to pay for my medical care?

No. Doctors, hospitals, or other health care facilities cannot require your agent to pay, even for health care that he or she has authorized.

What if I need an Advance Directive for Health Care but I cannot easily get around?

Attorney Randi Newbery regularly helps clients at their homes, health care facilities, and hospitals. If you need Randi to come to you, you can reach her at 973-992-5034.

How frequently should I review my Advance Directive for Health Care?

While the law may change, as long as your Advance Directive was properly signed and witnessed, it should be honored. However, additional medical matters may be covered as a result of changes in medicine or a change in the law. Or, the person you chose as your health care representative or alternate may no longer be the correct choice for you. So you should review your Advance Directive and other estate planning documents at least every three to five years and you may want to conduct this review with your attorney. You can reach Randi Newbery at 973-992-5034.