At LoFaro & Reiser, our New Jersey estate planning attorneys assist individuals with living wills.
WHY ARE LIVING WILLS IMPORTANT?
A living will allows a person to express his/her feelings about life support treatments long after they are no longer able to speak or think. No two people are the same, and therefore, opinions regarding treatments will obviously differ. The living will is a document which can adapt to the different philosophies maintained by various individuals. It allows for as much or as little life-support treatment as the maker desires. By executing a living will, an individual can protect their right to choose. Without such a document, decisions concerning life support treatments will be left to health care professionals. Although knowledgeable and qualified to administer treatments, they cannot know, and subsequently cannot respect your wishes as they pertain to life support measures.
TWO TYPES OF LIVING WILLS
A living will can be either an “Instruction Directive” or a “Proxy Directive”, or both. An "Instructive Directive" sets forth the instructions and directions regarding the health care of the person who signs it in case he or she later lacks such decision-making capacity. 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 permits the attending physician, consistent with the terms of the living will, to issue a “Do Not Resuscitate” Order. 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.
The "Proxy Directive" appoints a “Health Care Representative” to make health care decisions for the one who loses the capacity to do so. Under the Proxy Directive, a person may appoint any competent adult to serve as his or her health care representative. 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 is vested with the authority to make health care decisions on the patient's behalf. A person appointed as a health care representative is not legally responsible 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 patient's living will.
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.
MUST A LIVING WILL BE IN WRITING?
Yes. A living will must be in writing and is required to be 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 experienced estaet planning attorney.
IS A LIVING WILL REVOCABLE?
Yes. A 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.
Contact our New Jersey law firm today to inquire about a living will.