A Guide to Advance Directives and Living Wills
What is an Advance Directive (Living Will)?
If a serious medical condition prevents you from communicating your decisions about your treatment, then your family, another person you designate, or sometimes a court of law will need to make these decisions. An Advance Directive allows you to express your wishes regarding end-of-life treatment when you are unable to do so.
In New Jersey, an Advance Directive (commonly referred to as a Living Will) may include both an Instruction Directive and a Proxy Directive. An Instruction Directive is a document where you provide instructions and directions about your wishes for health care in the event that you subsequently are not able to make those decisions. A Proxy Directive is a document where you designate a health care representative in the event the maker subsequently lacks decision making capacity.
We invite you to review and utilize the following forms, provided in English and Spanish, to aid with making your health care decisions known and provide the ability for a family member or friend to make decisions on your behalf, if need be.
- Living Will Declarations
- New Jersey Medical Power Of Attorney
- Declaraciones de Ultima Voluntad de Morir
- Potencia de Abogado Médico en el Estado de Nueva Jersey
Can anyone prepare an Advance Directive?
Any competent adult (18 years or older) may execute an Advance Directive.
Who should I speak to before filling out an Advance Directive?
Your choices affect the people close to you and it is often helpful to discuss your choices with your family, friends, spiritual advisor. You may want to discuss your choices with your proxy. Because the Advance Directive refers to specific medical treatments, and the application of specific medical devices, it is often helpful to talk to your doctor about these treatments and devices if you have questions about them. While you may consult an attorney if you wish, it is not necessary.
How do I prepare an Advance Directive?
It is important for the Advance Directive to be prepared properly. The Advance Directive must be signed and dated by, or at the direction of, the maker in the presence of two adult witnesses, or a notary public or attorney at law, who attests that the person is of sound mind and free of duress and undue influence. A designated health care representative may not act as a witness to the execution of an Advance Directive.
What is the purpose of an Advance Directive?
An Advance Directive provides your instructions when you are not able to. An Advance Directive only provides your instructions about medical treatment which merely prolongs the process of dying. It recognizes a distinction between medical treatment which assists recovery and treatment that only prolongs the process of dying. An Advance Directive tells your medical care providers how you want to be treated when you are in the process of dying. It allows you to tell your medical care providers if you do not want to prolong the process of dying.
When does the Advance Directive become effective?
Medical care providers look to a patient’s wishes in an Advance Directive when the patient is permanently unconscious, or when the patient’s condition is terminal and a potential treatment is experimental and likely to be ineffective or the treatment is likely merely to prolong the dying process and will not cure the patient. Withdrawal or withholding of treatment must reasonably outweigh the benefits to the patient. If a treatment will not make the patient better, and will only prolong dying, imposing that treatment on an unwilling patient would be considered inhumane.
What is a Health Care Representative (Proxy)?
The Power of Attorney for Health Care Representative is a document which permits you to appoint an individual to make decisions on your behalf. In New Jersey this is known as a “Proxy Directive” and may be included in your Advance Directive.
Whom should I appoint as my Health Care Representative?
You should choose someone who is aware of your desires and whose judgment you trust. You should discuss your Advance Directive with that person and make sure he/she has a copy. It is also important to ascertain that the individual you select is willing to assume this responsibility.
Where should I keep my Advance Directive?
The Advance Directive does you no good unless it is available. Since it obviously comes into play when you have lost the ability to express yourself, it is important for individuals other than yourself to know where it is. Most hospitals will ask you if you have executed an Advance Directive prior to admission. Certainly the individual whom you have appointed as your proxy should have access to your Advance Directive.
Can I change my mind?
An Advance Directive can be changed at any time and does not become effective until the time when you can no longer make decisions for yourself and are terminally ill. Be sure to notify your proxy if your beliefs change.
How can I revoke my Advance Directive?
An Advance Directive may be revoked by notification, to thehealth care representative, physician, nurse or other health careprofessional, or other reliable witness. Such notification can be written, oral, or by any other act evidencing an intent to revoke the document. Also, subsequent proxy directives or instructive directives may be executed to revoke ones previously make.
Am I required to execute an Advance Directive?
No. The statute gives you this option. No one can force you to execute an Advance Directive. One of the requirements for proper execution of the document is that the person executing it be free of duress and undue influence.
Does the execution of an Advance Directive affect organ donations?
The right of an individual to make an anatomical gift is not restricted by the execution of an Advance Directive. An individual’s right to make such a gift is controlled by the Uniform Anatomical Gift Act, which in New Jersey has been adopted at NJS 26:6-57 through 65.
Prior to executing a New Jersey Advance Directive for Health Care (commonly known as a Living Will) and the Durable Power of Attorney For Health Care for the Appointment of a Health Care Representative (Proxy Directive), you should consult with your physician, hospital, and family and become fully informed about your rights regarding medical treatment, the procedures and options available and all matters related to these important legal documents and their consequences.
After extensive study and a full understanding, you may complete the document by printing your name on the top line of the document in the space provided for that purpose.
Under the headings A – TERMINAL CONDITIONS, B –PERMANENTLY UNCONSCIOUS AND C – INCURABLE AND IRREVERSIBLE CONDITIONS THAT ARE NOT TERMINAL you should denote your preferences regarding treatment by marking a check or an (X) after number 1 if you wish to direct the withholding or discontinuation of medical treatment. If you wish to direct the continuation of life-sustaining treatment you must mark a check or an (X) on the space after the number 2.
Under the heading D – EXPERIMENTAL AND/OR FUTILE TREATMENT, check or make an (x) in the space marked 1 only if you want this form of therapy or treatment withheld or withdrawn.
The heading E – BRAIN DEATH provides you with the option of excluding your death from being declared on the basis of the irreversible cessation of the entire brain, including the brain stem.
The heading F – SPECIFIC PROCEDURES AND/OR TREATMENTS provides you with the opportunity to express your desire and wishes regarding some specific medical treatment options. Should you want a particular treatment you should mark a check or make an (X) following the words: “I do want.” Should you oppose a particular treatment or procedure, mark a check or make an (X) following the words: “I do not want.”
The heading G – ORGAN DONATION provides you with the choice of donating your organs or not. Should you wish to donate your whole body to science for research or give any specific instructions regarding organ donations, you may write those directions in the box labeled specific instructions.
On the reverse side of the document under the heading SPECIFIC INSTRUCTIONS there is a boxed space that enables you to write any wishes, directions and instructions that you wish to add to the document. This space enables you to craft the document to address your personal philosophy, value system, religious concerns and any other instructions.
The heading DURABLE POWER OF ATTORNEY FOR HEALTH CARE for the APPOINTMENT of a HEALTH CARE REPRESENTATIVE (PROXY DIRECTIVE), provides you with a legal document that enables you to appoint a primary representative and an alternate health care representative authorized to make decisions regarding your health care and treatments consistent with your wishes as expressed in the instruction directive.
Please note that you should discuss your health care wishes with your selected representatives and that they should consent to serve as your proxies.
This document can be completed by dating the section that follows the sentence: “I sign this document knowingly and after careful deliberation” this day, month and year and by signing your name and printing your address.
Two non-relative witnesses must sign their names and addresses and the document must be dated. Although New Jersey statutes do not require notarization, this form provides for this option.
When you have completed your Advance Directive make several copies. Keep the original document in a safe but easily accessible place and tell others where you have stored it. DO NOT KEEP YOUR ADVANCE DIRECTIVE IN A SAFE DEPOSIT BOX. Have it readily available upon admission to a hospital or nursing facility. Give copies of your Advance Directive to the individuals you have chosen to be your Health Care Representative and Alternate Health Care Representative. You may also give copies of your Advance Directive to your doctor, your family, clergy and to anyone who might be involved with your health care.
Keep a completed ID, Identification card on your person and carry your Advance Directive with you when you travel.
An Advance Directive becomes operative when given to the attending physician or to the health care institution and when the person is determined to lack capacity to make a particular health care decision. An attending physician’s determination that a patient lacks decision making capacity must be confirmed by another physician.
Most important is to understand that an Advance Directive is limited by its purpose: to avoid prolonging the death process. If an individual executes an Advance Directive prohibiting use of a ventilator, that individual’s wishes will be honored if the ventilator does nothing more than prolong the process of dying. In some circumstances an individual is placed on a ventilator with anticipation of recovery. In that case the ventilator is not prolonging someone’s death.
An Advance Directive will be affected by changes in medical technology. A procedure which, in 1980 merely prolonged death, may, in 1996, be a valuable life saving tool.
An Advance Directive authorizes medical care providers to withhold treatment. It does not, nor cannot authorize a medical care provider to take proactive steps to hasten your death.
This list of definitions for certain medical terms may be relevant when preparing an Advance Directive for Health Care/Living Will. The definitions are intended to provide basic information only. Many of the terms are broad and complex and cannot be adequately explained in one brief passage. Also technology and treatments change over time. If you have questions about a particular procedure the best source of information is your doctor.
A. Life Sustaining Treatment
- Cardiopulmonary Resuscitation (CPR): CPR describes procedures that are done to restart the heart when it stops beating (“cardiac arrest”), and/or to provide artificial respiration when breathing stops (“respiratory arrest”). CPR can involve manual pressure to the chest and mouth-to-mouth breathing or pumping of air into the lungs using a rubber bag. In some instances, a tube may be inserted into the windpipe (“intubation”) for mechanical ventilation.
- Mechanical Ventilation or Respiration: A machine called a respirator or ventilator can take over breathing if the lungs cannot adequately breathe. It provides oxygen through a tube inserted into the windpipe.
- Surgery: A surgical procedure involves cutting into the body to treat a problem.
- Chemotherapy: Chemotherapy is drug treatment for cancer. It is used to cure cancer or reduce the discomfort of cancer even if it does not cure it.
- Radiation therapy: Radiation therapy involves the use of high levels of radiation to shrink or destroy a tumor.
- Dialysis: Dialysis requires the use of a machine that cleanses the blood when the kidneys cannot function adequately. This can be done through tubes placed into blood vessels (hemodialysis) or done through tubes into the abdomen (Peritoneal dialysis).
- Transfusion: The term transfusion refers to giving of any type of blood product into a vein intravenously.
- Artificially Provided Nutrition And Fluids: This group of terms refers to feeding patients who are unable to swallow food and fluid. This can be done through a tube into a vein or into the stomach. The feeding tube to the stomach can be placed through the nose (nasogastric tube) or through the abdomen (gastronomy tube).
- Antibiotics: Antibiotics are medications used to fight infections. They can be administered by mouth, by vein, by injection into a muscle, or through a feeding tube.
B. Comfort And Supportive Care (Palliative Care)
Comfort care is any kind of treatment that increases a person’s physical or emotional comfort. Comfort care includes adequate pain control. It may also include oxygen, food and fluids by mouth, moistening of the lips, cleaning, and turning, touching a person, or simply sitting with someone who is bedridden.
C. Medical Conditions:
- Terminal Condition: The end stage of an irreversible fatal illness, disease or condition.
- Permanent unconsciousness: A medical condition that is total and irreversible in which a person cannot interact with his/her surroundings or with others in any way and in which a person does not experience pleasure or pain.
D. Advance Directive For Health Care/Living Will:
- Instruction Directive: An Instruction Directive for Health Care, sometimes called a Living Will, is a written document, signed by you, in which you decide in advance the kind of care you would want if for any reason you are unable to make health care decisions for yourself.
- Proxy Directive: The Proxy Directive enables you to designate a health care representative. This person may be a family member, friend or other person who understands your feelings and is willing to make decisions for you about accepting, refusing or withdrawing treatment if you become unable to do so for yourself.
A copy of the New Jersey Advanced Directive for Health Care (Living Will) is also available to print and complete on pages 15-16 of the Patient Information Guide, and can be downloaded by clicking here.