Living Wills in New Jersey Law

Living Wills in New Jersey Law

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 basic component in the practice of Estate Planning Attorneys.

Why? A Living Will permits the patient to communicate, in improvement, the medical care decisions he or she would make if rendered incapacitated, so that their family won’t be put in the difficult position of having to do so for them.

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 produced 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.

The Basics:

The legal name for a Living Will is an progressive Directive, a document codified nearly 15 years ago by The New Jersey progressive Directives for Health Care Act.

In New Jersey, according to the law, an progressive 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 give evidence to 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 empowered in New Jersey to administer oaths.

The progressive 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.

Once made, the patient may revoke the progressive Directive either by oral or written notification of the revocation to the “Health Care Representative”, physician, nurse or other health care specialized, 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.

What It Does:

Consistent with the terms of an improvement Directive, life-sustaining treatment may be withheld or withdrawn from a patient if the life-sustaining treatment is:

· 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 course of action;

· The patient is permanently unconscious, as determined by the attending physician and confirmed by a second qualified physician;

· The patient is in a terminal condition as determined by the attending physician and confirmed by a second qualified physician, or

· 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.

The law allows the attending physician, consistent with the terms of the improvement Directive, to issue a “Do Not Resuscitate” Order.

Two Types — Instruction and Proxy:

There are two types of New Jersey progressive Directive, or Living Will: An Instruction Directive and a Proxy Directive. You may choose to create either one or both.

The first kind, an Instructive Directive is what clients usually average when referring to a Living Will. It provides instructions and directions regarding health care in the event that the patient afterward lacks such decision-making capacity. The Instruction Directive may state the person’s general treatment philosophy and objections together with the person’s specific wishes regarding the provision, withholding or withdrawal of any form of health care, including life-sustaining treatment.

The second kind, the Proxy Directive is more similar to a strength of Attorney because it appoints a “Health Care Representative” to make health care decisions in the event the patient afterward loses the capacity to make such decisions.

A person may appoint as his “Health Care Representative” any competent adult, including a family member, a friend or a religious adviser. Once the person’s attending physician determines that a person lacks decision- making capacity (along with confirmation of another physician, unless that person’s without of decision-making capacity is clearly apparent), the “Health Care Representative” has the authority to make health care decisions on behalf of the patient. The “Health Care Representative” is to make all health care decisions the patient would have made had he or she possessed decision-making capacity, or where the patient’s wishes cannot be determined adequately, to make a decision in the best interest of the patient.

In carrying out the person’s wishes, the “Health Care Representative” is to give priority to that patient’s 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 “Health Care Representative”.

Also important to observe, the Living Will statute in New Jersey covering Proxy Directives specifically protects the patient’s “Health Care Representative” from liability. The law states that the “Health Care Representative” is not imposed with any liability for any portion of the person’s health care costs, not unprotected 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 improvement Directive.

Physician and Hospital Responsibilities:

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 improvement Directive. In other words, the attending physician must begin the question of a Living Will. The attending physician is required to observe in the patient’s medical records whether an improvement Directive exists and the name of the patient’s “Health Care Representative”, if any. If an improvement Directive exists, a copy must be attached to the patient’s medial records.

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 improvement Directive. additionally, health care institutions must adopt policies and practices necessary to provide appropriate informational materials concerning improvement Directive to all interested patients, their families and their “Health Care Representatives”, and to assist those patients in discussing the executing an improvement Directive.

These health care institutions will also be required to adopt policies and practices necessary to educate patients, their families and “Health Care Representatives” about the availability, benefits and burdens of rehabilitative treatment, therapy and sets, included but not limited to family and social sets, self-help and advocacy sets, 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 “Health Care Representative” and attending physician in the event there is disagreement concerning the patient’s decision making capacity or in the interpretation of the improvement Directive concerning the patient’s course of treatment.

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.

The patient’s family, “Health Care Representative”, and appropriate others should be informed that if a person has appointed a “Health Care Representative” and afterward lacks decisions-making capacity concerning a particular health care decision, the attending physician must acquire the informed consent for, or refusal of, health care from the “Health Care Representative” after discussing the character and the consequences of the person’s medical condition, and the risks, benefits and burdens of the hypothesizedv health care and its alternatives. However, if the patient is afterward found to possess adequate decision-making capacity, the patient shall retain legal authority to make the health care decision.

additionally, already 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 “Health Care Representative” and over any contrary statement in the patient’s Instructive Directive.


The sets of an Estate Planning Attorney are not necessarily required in New Jersey to execute a Living Will – just as they are not required to execute a Real Estate Contract or a Last Will & Testament – 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’s wishes in the event of incapacity are clearly expressed – so as to be understood and followed – it may be prudent to consult a lawyer experienced in Estate Planning before the event arises in which the Living Will is needed.

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