Living Wills, Advance Directives and Medical Decision Powers 

What is an Advance Directive (Living Will)

An Advance Health Care Directive, commonly know as a living will or Medical Decision Power of Attorney, permits you to write down your intentions regarding medical procedures, should there come a time when you can no longer express yourself.


The purpose of an Advance Directive (Living Will)  is to allow an individual to direct the course of their medical treatment by naming a person or persons they trust to make medical decisions for them, should the individual be unable to do so him or herself. The Advance Directive (Living Will) may also direct what medical treatments may or may not be used to prolong the life of the affected individual.


In New Jersey an Advance Directive (Living Will) may include both an Instruction Directive and a Proxy Directive. An Instruction Directive is a writing which provides instructions and direction regarding the person's wishes for health care in the event that person subsequently lacks decision making capacity. A proxy Directive is a writing which designates a health care representative in the event the maker subsequently lacks decision making capacity. At Avery & Avery, Esqs., we generally recommend the appointment of a proxy who will  typically be your close friend, relative or other trusted person, who will have the authority to enforce the provisions of the Living Will, and direct the course of medical care.


Is an Advance Directive legal?

Yes. New Jersey Statute 26:2H-54, enacted in 1992, specifically authorizes an individual to execute an Advance Directive, and to appoint another as proxy for his or her health care decisions. Advance Directives are recognized in all 50 states, all as mandated by the Federal Patient Self- Determination Act, 42 USC 1395 c(a)-1 et. seq.


Can anyone prepare an Advance Directive?

Any competent adult (18 years or older) may execute an Advance Directive.


How is an Advance Directive prepared?

It is important for the Advance Directive to be prepared properly. If it is not, it will be given no effect, negating your intentions. The New Jersey Statute sets out specific requirements for executing an Advance Directive. The advance Directive shall be signed and dated by, or at the direction of, the maker in the presence of two subscribing adult witnesses, a notary public, an attorney at law, or others authorized to administer oaths. They shall attest that the person is of sound mind and free of duress and undue influence. A designated health care representative (that is the person named as the agent to carry into effect the intent of the person making the Living Will) shall not act as a witness to the execution of an Advance Directive.


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. At Avery & Avery, Esqs., we generally recommend that two executed copies be sent home with the client, one to be kept in a safe place at home or safety deposit box for the time it may be needed, with the second given to the agent named in the Living Will, for the same purpose and to ensure that the agent knows that he or she has been appointed. A third executed copy is maintained in the office files of Avery & Avery, Esqs., to ensure the availability of a signed copy, should all other copies be lost by the time needed.


Who 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 or she has a copy. It is also important to ascertain that the individual you select is willing to assume this responsibility. The person so named is typically a child or other close family member such as brother or sister, niece, nephew or cousin. Naturally the person can be anyone you wish whose judgment you trust.


Can I revoke my Advance Directive?

Yes, An Advance Directive may be revoked by notification to the health care representative, physician, nurse or other health care professionals; or other reliable witnesses. 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 made.

I don’t want to be the executor of the estate, do I have to?

No one has to be an executor if they do not wish to be.  You can file a renunciation with the county surrogate at the time the will is probated.  The duty will then fall to the alternate executor.  If there are no alternates or they also do not wish to serve, one may be appointed.

How we can help:

The attorneys at Avery & Avery have the knowledge and experience to guide you and your family through the preparation of a Medical Decision Power of Attorney / Living Will / Advance Directive, to ensure the best outcome for your individual needs.  For a free consultation contact us through our Contact Page, or call 201-943-2445.

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