The Importance of Having an Advance Directive
By Amy L. Knapp, Esquire
Whether you are 18 or 80, you have the right to make your own decisions about medical care, including whether to accept and/or refuse treatment. While although your doctor and hospital staff cannot require you to make an Advance Directive, a growing number of individuals, nevertheless, are taking an active role in their care before a medical issue arises and they may not be able to communicate their wishes.
They are stating their health care preferences in writing, while they are still healthy and able to make such decisions, through a legal document called an Advance Directive, or also commonly referred to as a Living Will.
The following is some basic facts about Advance Directives to get you started on thinking about this process and assist you with answering questions you may have about advance care planning. Most importantly, we encourage everyone to talk with their family and doctor and decide what is right for them and then put it in writing.
What Is an Advance Directive (Living Will)?
In New Jersey, an Advance Directive may include, both an Instruction Directive, which allows you to choose the kind of life-prolonging medical care you want if you become terminally ill, permanently unconscious, or in a vegetative state and unable to make your own decisions.
The second document, a Proxy Directive permits you to name another person to make medical decisions for you if you are unable to make them yourself. You should choose someone who is aware of your wishes, and whose judgment you trust. It is also important to make sure that the person you want to designate as your health care representative is willing to serve.
A living will, in most cases, only becomes effective when you are verbally unable to communicate your wishes regarding life-sustaining treatment.
What Is the Legal Status of an Advance Directive in New Jersey?
New Jersey Statute 26:2H-5 (1992), specifically authorizes an individual to execute an Advance Directive, and to appoint another as their health care representative.
Can Anyone Prepare An Advance Directive?
Any competent adult (18 years or older), may execute an Advance Directive.
What Happens If You Do Not Have An Advance Directive?
If you do not have an Advance Directive and are unable to make decisions regarding your medical care and treatment options, New Jersey law does permit your physician to contact a member of your immediate family. Your medical care choices will be made by a family member that your physician is able to contact.
How Is An Advance Directive Prepared?
It is important for the Advance Directive to be properly prepared. If it is not, it may be given no legal effect, thereby thwarting your intentions. New Jersey statute sets out specific requirements for executing an Advance Directive. The Advance Directive must be signed and dated by, or at the direction of, the maker in the presence of two subscribing adult witnesses, a notary public, an attorney at law, or others authorized to administer oaths. They shall attest that the person is of sound mind and free of duress and undue influence. A designated healthcare representative shall not act as a witness to the execution of an Advance Directive.
Where Should I Keep My Advance Directive?
Your Advance Directive does no good unless it is available. Since it obviously comes into play when you have lost the ability to express yourself, it is important for individuals, other than yourself, to know where it is located. Most hospitals will ask you if you have executed an Advance Directive at the time of admission, however, in an emergency, certainly the individual who you have appointed as your healthcare representative should have access to your Advance Directive.
What If I Draw Up a Living Will and Health Care Power of Attorney and Then Change My Mind?
You may change or revoke these documents at any time. Any alterations and any written revocation should be signed and dated, and copies should be given to your healthcare representative and physician. Even without an official written change, your orally expressed direction to your physician generally has priority over any statement made in a Living Will or Power of Attorney as long as you are able to decide for yourself and can communicate your wishes.
Who Can I Contact If I Would Like To Have an Advance Directive Prepared or Have Additional Questions?
You can contact the Law Offices of Lee M. Perlman to schedule a free consultation with an experienced estate planning attorney who will listen to you and explain all of your options and how we can best assist you in meeting your estate planning objectives.
The will questionnaire provides you with everything you need to know to prepare your Health Care Powers of Attorney and Living Will.