Advance Medical Directives: Durable Powers of Attorney for Health Care and Living Wills

By Donald D. Vanarelli, Esq.

In New Jersey, Advance Medical Directives (or “Advance Directives”) are governed by the New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 et seq. Under this Act, three types of Advance Directives are recognized:

1. A “Proxy Directive” (also referred to as a “Durable Power of Attorney for Health Care”), in which the individual designates a person as his/her health care representation in the event that the individual subsequently loses decision-making capacity;
2. An “Instruction Directive” (also referred to as a “Living Will”), in which the individual provides written instructions and direction regarding his/her health care wishes in the event that the individual subsequently loses decision-making capacity; and
3. A Combined Advance Directive, which incorporates both a Proxy Directive and an Instruction Directive.

N.J.S.A. 26:2H-58.

An Advance Directive may be modified by executing a subsequent directive. An Advance Directive may be revoked by giving written or oral notification to a physician, nurse, other health care professional, or other reliable witness, or by an act evidencing the intent to revoke the document.N.J.S.A. 26:2H-57.

A Proxy Directive may (and should) include the designation of alternate decision makers (“health care representatives”), listed in order of priority, to allow for the possibility of a primary designee becoming unavailable. N.J.S.A. 26:2H-58(a)(3). The Proxy Directive may include limits on the health care representative’s authority, and may direct that the health care representative consult with certain individuals (such as friends or family) during the decision-making process. N.J.S.A. 26:2H-58.

An Instruction Directive may include the following information:

1. the individual’s general treatment philosophies and objectives; and/or
2. the individual’s desires concerning providing, withholding or removing any form of health care or treatment. N.J.S.A. 26:2H-58(b).

Common questions raised by clients who are considering executing an Advance Directive involve the authority of a health care representative to act in situations in which (1) an individual’s Instruction Directive is unclear, or (2) the health care representative attempts to take steps contrary to the individual’s Instruction Directive. A health care representative is required by statute to give priority to the Instruction Directive in effect (and may consider, as appropriate and necessary, other evidence of the patient’s wishes). N.J.S.A. 26:2H-63(b). In the event that an Instruction Directive does not provide clear direction regarding a particular medical situation, other evidence of the patient’s wishes will be considered, and the health care representative “shall exercise reasonable discretion, in good faith, to effectuate the terms, intent, and spirit of the instruction directive and other evidence of the patient’s wishes.” N.J.S.A. 26:2H-63(d). Unless the Advance Directive states otherwise, if the patient’s wishes cannot be adequately determined, then the health care representative “shall make a health care decision in the patient’s best interests.” N.J.S.A. 26:2H-63(e). Given these statutory provisions, it is always advisable to make specific provision in an Advance Directive to address such potential conflicts between the terms of the Instruction Directive and the instructions of a health care representative.

It is vital to recognize that an Advance Directive becomes operative only when (a) it is forwarded to the individual’s attending physician or health care institution, and (2) a determination has been made that the individual lacks capacity to make a particular decision regarding a health issue. N.J.S.A. 26:2H-59.

Emergency personnel such as paramedics or emergency room personnel are not required to withhold or remove emergency care when circumstances do not provide a reasonable opportunity for review and evaluation of the Advance Directive without threatening the patient’s life. N.J.S.A. 26:2H-70.

Notwithstanding the above, if a patient has been found to lack decision-making capacity but clearly expresses a contemporaneous wish that life-support be provided, that wish shall take precedence over a contrary instruction by the health care representative and a contrary statement in the patient’s instruction directive. N.J.S.A. 26:2H-63.

The New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 et seq., provides that, pursuant to an Advance Directive, life-sustaining treatment may be withheld in the following situations:

1. When the life-sustaining treatment is experimental and not a proven therapy, or is likely to be ineffective or futile in prolonging life, or is likely to merely prolong the imminent dying process;
2. When the patient is permanently unconscious….;
3. When the patient is in a terminal condition…; or
4. …[W]hen the patient has a serious irreversible illness or condition, and the likely risks and burdens associated with the medical intervention…may reasonably be judged to outweigh the likely benefits to the patient from such intervention, or…on an unwilling patient would be inhumane.

N.J.S.A. 26:2H-67.

The statute directs that the execution (or non-execution) of an Advance Directive shall not affect the terms or conditions of coverage of, or the rights and obligations created under, any health or life insurance plan, or annuity or governmental benefits program. N.J.S.A. 26:2H-75.

METHODS TO ENSURE THAT AN ADVANCE DIRECTIVE IS FOLLOWED

1. A treating physician (or a nurse or other health care professional) may decline to withhold life support in accordance with sincere personal or professional convictions. N.J.S.A. 26:2H-62. Therefore, provide a copy of your Advance Directive to your treating physician, and discuss the terms of the Directive with your doctor.
2. Discuss your Advance Directive with your family, and in particular, with anyone that you designate as your health care representative. Choose a health care representative who agrees to comply with your wishes, and who is assertive. Provide your health care representative with a list of suggested questions to ask a physician to help the health care representative make relevant determinations, such as the reason for a treatment and the prognosis. Consider including a provision that prevents the health care agent from considering input of a relative whom you believe would undermine your wishes.
3. Consider including a provision in favor of in-home or hospice care, and against institutions reputed to provide aggressive treatment. Note that a private, religiously-affiliated health care institution is permitted by statute to institute policies in which it declines to withhold or withdraw life-sustaining measures. N.J.S.A. 26:2H-65(b). Such policies are required to be set forth in writing. Prior to admission to an institution, communicate with the institution to determine their policies and practices regarding Advance Directives. Provide a copy of your Advance Directive to your health care institution and discuss its terms with a representative of the institution.
4. Execute a financial power of attorney that prevents the agent from utilizing your funds to pay for treatment that is contrary to the terms of your Advance Directive.
5. Include in your Advance Directive a provision authorizing your health care representative to file suit to enforce your rights, including a suit for damages in the case of unwanted medical treatment. 

For additional information regarding Advance Medical Directives and Durable Powers of Attorney for Health Care and Living Wills, call us at 908-232-7400 or click here to contact us online.