Written By:Scott Glatstian
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3 Generations & 100+ Years of Combined Legal Experience
Nobody wants to imagine a time where they are confined to a hospital bed or facing a serious medical diagnosis. In fact, as the CDC reports, most Americans would prefer to die at home, but the majority of Americans have made no plans to ensure that this happens.
How can someone plan for their future potential incapacitation? In New Jersey, this is done through the use of an advance directive for healthcare, or durable power of attorney for health care. Just like a durable power of attorney for finances, the advance directive is a legal document designed to authorize another person to manage one’s affairs if they are unable to do so themselves, except in this case the advance directive is specifically designed for the management of one’s healthcare and treatment decisions.
Read on to learn about what goes into an advance directive, how to create one according to New Jersey law, and the potential issues that need to be considered when drafting this document.
What Goes in an Advance Directive?
In New Jersey, the advance directive combines two separate legal items into a single document:
- Health care proxy designation
- Living will
Let’s examine each one. The health care proxy designation is where a person will name someone to make medical decisions on their behalf in the event they are ever unable to do so themselves. While it’s generally expected that the proxy will consult with doctors and family members before making any important decisions on medical treatments, they are ultimately the ones with the authority to make the decision.
Why does this matter? Choosing the right person to be one’s health care representative is a very important decision, and not one that should just be handed off to the closest family member. Some questions to ask before naming a proxy include:
- Will this person be available to step in immediately and make these decisions when the time is required?
- Are they local to where I reside?
- Can this person speak intelligently with doctors and medical professionals and come to an educated decision on how to proceed with my treatment?
- Is this person willing to disregard their own inclinations for my healthcare and follow my wishes as laid out in my living will?
If the answer to any of these questions is no, it may be time to consider a different person for this role. Furthermore, it’s best to name at least one backup proxy, just in case one’s named representative is not available when they are needed.
The best way to determine if someone is up to taking on this role is to speak with them directly. Explain your thoughts and desires when it comes to your medical care, and ask them if they would be willing to follow those wishes if ever called upon. If they are unsure or hesitant, it might be best to consider someone else. Choosing the wrong person to be one’s proxy is almost as bad as not having a proxy at all.
Once the decision of who will be named the healthcare proxy is complete, the next step is creating a living will. Living wills are documents that lay out a person’s preferences regarding various medical treatments. It’s where a person might include instructions such as:
- Whether or not to donate their organs
- How to follow any religious rules regarding their treatment and post-mortem care
- Which treatments they consider unacceptable
This last item is important. As mentioned above, the CDC has repeatedly found that most Americans want to die at home. What does this mean when it comes to treatment? Well, it may mean that they do not want to be given some permanent life sustaining treatment, such as a ventilator or feeding tube.
Or perhaps they would be alright with these treatments, but only for a certain period of time. The living will can be as specific as its creator desires, covering a wide range of different medical treatments and preferences, or in the alternative stating their general thoughts on how and when they would like to receive care, and letting their healthcare proxy take it from there.
Choosing the right proxy and creating a living will that covers everything it needs to can be a difficult process. Speaking with an attorney will help to ensure that the right proxy is chosen and that the living will adequately describes the wishes of its creator under various likely circumstances.
How Is an Advance Directive Created and How Does It Work?
New Jersey law requires that an advance directive be signed by its creator in the presence of two witnesses who can attest to the creator’s sound mind at the time of signing the document. These witnesses cannot be named proxies in the directive, nor can they be a physician who is treating the creator of the document.
Once properly signed, copies of the document still need to be distributed to the right people and it should be stored and accessible for use whenever it is needed. Some people who should receive a copy of your advance directive include:
- Your healthcare proxy and backups
- Family members who may be involved in your healthcare
- Doctors and hospitals where you receive treatment
- Your attorney
The main point of having an advance directive is for it to be brought out and applied when a person becomes incapacitated and requires medical treatment. Since, by definition, the person who created the document will not be able to describe its location to anyone at the time it is needed, it’s best to make sure that everyone who could be involved in their healthcare is provided with a copy of the document when it’s created. If you work with an attorney in creating your advance directive, they will likely hold on to a copy, which can be distributed to the proxy and hospital in the event it is ever needed.
When does the advance directive go into effect? At the minimum, an advance directive will only go into effect when the primary physician treating the patient determines that they are no longer capable of making their own decisions regarding their healthcare. If desired, the document can be written to require a second confirming opinion of incapacitation, either generally or in order to provide or withhold certain treatments.
Deciding when to have the advance directive go into effect and ensuring that it is available and used when needed can sometimes be complicated. The best way to make sure this process goes smoothly is to work with a qualified attorney who can advise on how to store and distribute the document effectively.
Why Hire an Attorney?
Whether you are young or old, healthy or sick, medical issues can arise at any moment and render you incapacitated. While it’s difficult to contemplate such things happening, it’s always best to plan for them before they occur, rather than leave one’s family dealing with both an ailing family member and the need to make decisions about how they should be treated.
At Rosenblum Law, we guide our clients through every step of the process and create an advance directive for them that will ensure that their wishes are followed and their family is prepared for any future possibility. Call us now to get started with a free consultation.
How to Cite Rosenblum Law’s Article
Scott Glatstian (Sep 8, 2022). Creating an Advance Directive for Healthcare in New Jersey. Rosenblum Law Firm, https://rosenblumlaw.com/estate-planning/nj/creating-directive-for-healthcare/
Scott Glatstian "Creating an Advance Directive for Healthcare in New Jersey". Rosenblum Law Firm, Sep 8, 2022. https://rosenblumlaw.com/estate-planning/nj/creating-directive-for-healthcare/