THE “LIVING WILL” IN NEW JERSEY: AN OVERVIEW OF THE NEW JERSEY ADVANCE DIRECTIVES FOR HEALTH CARE ACT
By: Justin M. Smigelsky, Esq.
An often overlooked – yet essential – item of any estate plan is the document commonly referred to as an “advance directive” (otherwise known as a “living will” or “health care directive”). Nearly every state has enacted legislation to recognize an individual’s right to plan for important health-care decisions in the event of future incapacity by executing an advance directive. The New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 et seq., addresses the formalities for execution, re-affirmation, modification, revocation and suspension of an advance directive, as well as an individual’s rights in this regard and the obligations imposed upon health-care professionals and institutions.
New Jersey law provides for three types of advance directives: an individual may state his wishes/instructions for health care (“instruction directive”), may designate another competent adult to make health-care decisions on his behalf (“proxy directive”), or, as is commonly preferred, both can be stated in the same document (“combined advance directive”). An advance directive becomes operative when (1) it is transmitted to the attending physician or the health-care institution, and (2) it is determined that the patient lacks capacity to make a particular health-care decision. Pursuant to N.J.S.A. 26:2H-60, the attending physician shall determine whether the patient lacks capacity to make a particular health-care decision, with the determination required to be stated in writing (section “a.”) and, in most instances, confirmed by one or more physicians in writing (section “b.). In making such a determination, the patient’s ability to understand and appreciate the nature and consequences of a particular health-care decision – including the benefits, risks, and alternatives – must be evaluated (section “g.”).
Upon a determination that the patient lacks capacity, a designated health care representative (the proxy) exercises the patient’s rights to be informed of the patient’s medical condition, prognosis and treatment options, and to give informed consent to, or refusal of, health care. Once lack of capacity is established, the proxy has the authority to make decisions in regards to the patient’s health care so long as the proxy acts in good faith and within the bounds of the authority granted in the advance directive. In exercising these rights and responsibilities, the representative must seek to make the decision the patient would have made had he possessed decision-making capacity or, when the patient’s wishes cannot be adequately determined, shall make the decision in the best interests of the patient. N.J.S.A. 26:2H-61.
The New Jersey Advance Directives for Health Care Act specifically allows a “declarant” to execute an advance directive for health care at any time; however, an individual adjudicated incompetent cannot execute an advance directive. Accordingly, as with any estate-planning device, it is critical to execute an advance directive prior to loss of capacity/competency. Pursuant to N.J.S.A. 26:2H-57(d), an incompetent individual is permitted to suspend and reinstate an advance directive so long as it was executed while competent – the Act is an anomaly as it provides incompetents with a certain degree of autonomy with regard to pre-determined health-care decisions, but prohibits them from enjoying the full benefit of the statute. See In the Matter of Roche, 296 N.J. Super. 583, fn 3 (Ch. Div. 1996).
Because estate planning, and estate and trust administration and litigation, require specialized knowledge, you may wish to consult with an experienced attorney if you are planning your estate, or a fiduciary or beneficiary of an estate or trust. Specifically, you may wish to contact an attorney if you have questions regarding estate planning, the probate process, administration of an estate or trust, fiduciary obligations, preparation of a formal or informal accounting, refunding bonds and releases, and the procedures for filing a formal accounting or exceptions thereto. This article is for information purposes only, and is neither legal advice nor the creation of an attorney client relationship.