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.
