As personal injury and medical malpractice lawyers we have come to recognize all too well the frequency with which life can turn on a dime. Far too many people have taken the time to draft a will and left out advance care directives, also known as healthcare designees and medical proxies. These directives provide an opportunity for the creator to remain in control of their healthcare decisions even when incapacitated, including decisions for end-of-life care. Without these documents, these decisions might be left in the hands of physicians or a judge who does not know the creator’s preferences and beliefs rather than by trusted family or friends.
Healthcare professionals also encourage the creation of such directives as they provide the creator with a voice during difficult times and reduce the burden that comes with making medical decisions on the creator’s behalf by loved ones you believe may not be equipped to make such judgments.
Why would I need an advanced directive?
While the U.S. Centers for Disease Control and Prevention (CDC) report that heart disease and cancer remain a primary cause of death, fatalities due to serious injuries are not only common but are on the rise. Nearly 700 people in New Jersey died from car accidents in 2022, the highest number in 15 years. Those who take the time to put together advanced directives can better ensure the medical team honors their wishes when they face serious disease or injury.
What exactly is an advanced directive?
New Jersey state law recognizes two types of healthcare directives that serve this function: a proxy directive or Durable Power of Attorney for Healthcare and an instructive directive or Living Will.
The proxy directive allows the creator to appoint an individual, known as a healthcare representative, to make healthcare decisions on their behalf. This applies to both temporary and permanent incapacitation. The healthcare representative should make decisions in line with the creator’s wishes or, if the wishes are unknown, make a decision that is in the creator’s best interest. The creator can also require the healthcare representative to consult with others before making a decision. This can include specific family members.
The instructive directive is a document that provides guidance to the healthcare representative. It is generally wise to also share these wishes with the creator’s loved ones and physician. The document can provide specific instructions, such as do not resuscitate or intubate, or more general information about care preferences.
When are these documents valid?
In New Jersey, when the creator’s physician determines that the creator is unable to understand the diagnosis and medical options. The creator will receive control again if they regain the ability to make their own healthcare decisions. State law generally requires valid documents be notarized or signed by two adult witnesses. The healthcare representative cannot be one of the witnesses.
What if I change my mind?
The creator can change the documents by completing a new one. The creator can also cancel the document. It is helpful for the creator to inform loved ones, their treating physician, and healthcare directives of any changes or cancelations.
Who can I consult to prepare an advance directive?
Since our firm does not prepare these documents, we recommend reaching out to lawyers who do estate planning. Feel free to contact us for recommendations.