Articles

The Basics of Living Wills

By: Attorney Thomas G. McMahon
If you care about the feelings of family members or simply your own final health care treatment, you should consider executing a “LIVING WILL”, the name by which Advanced Directives have become popularly known.

The Living Will can be an “Instruction Directive” or a “Proxy Directive”, or both. The former provides the instructions and directions regarding health care of the person who signs it in case he or she later lacks such decision-making capacity. The latter appoints a “Health Care Representative” to make health care decisions for the one who loses the capacity to do so.

The Instruction Directive may state the person’s general treatment philosophy and objections, together with the person’s specific wishes regarding the provision, withholding or withdrawal of any form of health care, including life-sustaining treatment. The law specifically allows the attending physician, consistent with the terms of the Living Will, to issue a “Do Not Resuscitate” Order.

Nevertheless, New Jersey law expressly states that a Living Will should not be interpreted to impair the obligations of health care professionals to provide for the care and comfort of the patient and to alleviate pain, in accordance with accepted medical standards.

Under the Proxy Directive, a person may appoint as his or her Health Care Representative any competent adult. Once the person’s attending physician determines that a person lacks decision-making capacity (along with confirmation of another physician unless that person’s lack of decision-making capacity is clearly apparent), the Health Care Representative has the authority to make health care decisions on behalf of the patient.

The law specifically states that the Health Care Representative is not liable for the person’s health care costs, nor subject to criminal or civil liability for any action performed in good faith to carry out the terms of the Living Will.

The attending physician must obtain the consent for health care from the Health Care Representative after discussing the nature and the consequences of the patient’s medical condition, and the risks, benefits and burdens of the proposed health care and its alternatives.

However, if the patient is subsequently found to possess adequate decision-making capacity, the patient retains legal authority to make all health care decisions. Moreover, even if the patient lacks decision-making capacity, but nonetheless clearly expresses the wish that medically appropriate measures be utilized to sustain life, that wish takes precedence over any contrary decision of the Health Care Representative and over any contrary statement in the patient’s Living Will.

A Living Will is a relatively simple document; it only need be in writing, and signed and dated in the presence of two adult witnesses, attesting that the person is of sound mind and free from duress and undue influence. Alternatively, it may be signed, dated and acknowledged before a notary public, an attorney or other person authorized to administer oaths. To be certain that the Living Will conforms to New Jersey’s guidelines and that one’s wishes are clearly expressed so as to be understood and followed, it is prudent to consult an attorney.

Finally, the Living Will may be revoked at any time either by oral or written notice to the Health Care Representative, physician, nurse or other health care professional, or by any other act evidencing an intent to revoke the directive.

Learn more about Estate Planning & Living Wills

Legal Resources:
Articles Blogs Video Center Glossary

1-800-432-LAWS