Living Wills
The recent protacted
legal battle concerning Terry Schiano has raised the
importance of the need to have a living will. The
law pertaining to living wills and health care proxies
is not uniform among the states. States are free
to determine what elements they will demand for an
advance directive to be valid in their state.
Therefore, it is necessary to deal with the laws of each
state individually. Only a brief overview of the
laws dealing with advance directives in New Jersey is
addressed within the context of this web site.
WHY ARE LIVING WILLS
IMPORTANT?
A living will allows a person to express his/her
feelings about life support treatments long after they
are no longer able to speak or think. No two people are
the same, and therefore, opinions regarding treatments
will obviously differ. The living will is a document
which can adapt to the different philosophies maintained
by various individuals. It allows for as much or as
little life-support treatment as the maker desires. By
executing a living will, an individual can protect their
right to choose. Without such a document, decisions
concerning life support treatments will be left to
health care professionals. Although knowledgeable and
qualified to administer treatments, they cannot know,
and subsequently cannot respect your wishes as they
pertain to life support measures.
WHAT ARE ADVANCE DIRECTIVES?
Advance directives are any written directions you
prepare that say what kind of medical care you want in
the event you become unable to make decisions for
yourself. There are two types of advance directives: (1)
instruction directives, and (2) proxy directives.
Instruction directives are what we refer to when we use
the term "living will." They specify in advance, what
life support treatments you wish to accept or refuse and
the circumstances in which you want your wishes
implemented. These instructions then serve as a guide to
those responsible for your care. Proxy directives are
often referred to as durable powers of attorney for
health care (DPAHC). They appoint an agent, or
representative, to make health care decisions on the
maker's behalf, in the event of loss of legal capacity.
HOW LIVING WILLS AND
HEALTH CARE PROXIES DIFFER
While they are both types of advance directives, living
wills and health care proxies are quite different. To
execute a living will, a person simply states what life
support treatments are wanted in the event they lose
decision-making capacity. In contrast, a health care
proxy requires the appointment of an agent. The agent is
designated by the maker to make virtually all health
care decisions if the maker should become incapacitated.
The living will states what the patient's wishes are and
how to honor those wishes. The proxy instrument simply
appoints a representative to make decisions for the
patient whenever such decisions become necessary. The
health care proxy is more flexible than the living will
since it allows the agent to make decisions as the
specific situations arise. The living will, on the other
hand, states the desired treatments and does not allow
for unforeseen events. Living wills and health care
proxies are important instruments. Both should be
executed to provide the maximum protection possible in
the event of a tragedy.
WHERE
SHOULD HEALTH CARE PROXIES BE KEPT?
In addition to the maker keeping a copy of the proxy
directive, copies should be distributed to the primary
agent, the secondary agent, and the personal physician.
Family members, friends, or anyone else who is likely to
be involved in your health care treatments should be
given a copy.
EXECUTING AN ADVANCE DIRECTIVE
A competent adult may execute an advance directive at
any time. The instrument must be signed by, or at the
direction of, the maker. This signing must be witnessed
and signed by either two adult witnesses or a notary
public or lawyer. The witnesses must attest to the sound
mind of the declarant, and that the instrument was
executed free of duress or undue influence. One who is
designated as an agent in a proxy directive is
ineligible to act as a witness. In New Jersey the agent
is also referred to as a health care representative. A
female declarant may wish to include what effect the
advance directive shall have in the event that she is
pregnant. New Jersey recognizes advance directives
executed in other states as long as they comply with the
laws of that state or the state of New Jersey. Advance
directives executed in another country will be
recognized in New Jersey as long as they conform to the
laws of that country or the laws of New Jersey, and are
not contrary to the public policy of the state of New
Jersey.
MAKING CHANGES IN THE ADVANCE DIRECTIVE
Both an instruction directive and a proxy directive
can be modified at any time, so long as the declarant
still has decisional capacity. When changes are made,
they should be witnessed and dated. If changes are
frequently made, it may be easier to simply execute a
new document.
REVOKING AN ADVANCE DIRECTIVE
An advance directive may be revoked at any time.
Revocation takes effect upon oral or written
notification to a health care representative, doctor,
nurse, or any other health care professional or other
reliable witness. Any act which evidences a desire to
revoke the instrument will also be seen as a valid act
for purposes of revocation. The execution of subsequent
instruments will also act to revoke any previous such
documents.
INABILITY TO COMPLY WITH DIRECTIVES
In the State of New Jersey, if your wishes are made
clear then they must be respected. A doctor, however,
cannot be forced to comply with the withholding or
withdrawing of any life support measures that are
contrary to his/her beliefs, professional or otherwise.
If such a case arises, the doctor or health care
professional must express his/her inability to carry out
the terms of the directive to the designated medical
official as soon as possible. In addition, he/she must
facilitate the transfer of the patient to another
physician who will be able to carry out the terms of the
instrument. A private, religiously-affiliated
institution may adopt their own policies regarding the
withdrawal or withholding of life sustaining treatments.
Such policies must be in writing and communicated to the
patient before arrival, upon arrival, or as soon after
arrival as practicable. In the event that the
institution's policies conflict with the patient's legal
rights, the institution must take the necessary steps to
transfer and accommodate the patient at another
facility.
 To
discuss making a living will, contact a New Jersey
estate planning lawyer today.
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