NEW JERSEY - ADVANCE DIRECTIVES FOR HEALTH CARE (LIVING WILLS)

March 25, 2008

New Jersey state laws and regulations that affect your medical practice

1. What is an advance directive for health care?

An advance directive is a witnessed written document that allows the patient to direct who will make health care decisions for the patient and to state his or her wishes for medical treatment if the patient becomes unable to make those decisions in the future. The patient’s advance directive may be used to accept or refuse any procedure or treatment, including life- sustaining treatment. The New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 et seq. (“the Act”), addresses the fundamental right of competent adults to control decisions regarding their health care and to plan ahead by allowing them to execute advance directives that specify their wishes.

2. What are the public policy considerations regarding advance directives?

The New Jersey Legislature has declared that:

A. Competent adults have the fundamental right, in collaboration with their health care providers, to control decisions about their own health care. This State recognizes, in its law and public policy, the personal right of the individual patient to make voluntary, informed choices to accept, to reject, or to choose among alternative courses of medical and surgical treatment.

B. Modern advances in science and medicine have made possible the prolongation of the lives of many seriously ill individuals, without always offering realistic prospects for improvement or cure. For some individuals the possibility of extended life is experienced as meaningful and of benefit. For others, artificial prolongation of life may seem to provide nothing medically necessary or beneficial, serving only to extend suffering and prolong the dying process. This State recognizes the inherent dignity and value of human life and within this context recognizes the fundamental right of individuals to make health care decisions to have life-prolonging medical or surgical means or procedures provided, withheld, or withdrawn.

C. In order that the right to control decisions about one's own health care should not be lost in the event a patient loses decision making capacity and is no longer able to participate actively in making his own health care decisions, this State recognizes the right of competent adults to plan ahead for health care decisions through the execution of advance directives, such as living wills and durable powers of attorney, and to have the wishes expressed therein respected, subject to certain limitations.

D. The right of individuals to forego life-sustaining measures is not absolute and is subject to certain interests of society. The most significant of these societal interests is the preservation of life, understood to embrace both an interest in preserving the life of the particular patient and a related but distinct interest in preserving the sanctity of all human life as an enduring social value. A second, closely related societal interest is the protection of individuals from direct and purposeful self-destruction, motivated by a specific intent to die. A third interest is the protection of innocent third parties who may be harmed by the patient's decision to forego therapy; this interest may be asserted to prevent the emotional and financial abandonment of the patient's minor children or to protect the paramount concerns of public health or safety. A fourth interest encompasses safeguarding the ethical integrity of the health care professions, individual professionals, and health care institutions, and maintaining public confidence and trust in the integrity and caring role of health care professionals and institutions. Finally, society has an interest in ensuring the soundness of health care decision making, including both protecting vulnerable patients from potential abuse or neglect and facilitating the exercise of informed and voluntary patient choice.

E. In accordance with these State interests, this State expressly rejects on both legal and moral grounds the practice of active euthanasia. No individual shall have the right to, nor shall any physician or other health care professional be authorized to engage in, the practice of active euthanasia.

F. In order to assure respect for patients' previously expressed wishes when the capacity to participate actively in decision making has been lost or impaired; to facilitate and encourage a sound decision making process in which patients, health care representatives, families, physicians, and other health care professionals are active participants; to properly consider patients' interests both in self-determination and in well-being; and to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients as the law and public policy of this State, the Legislature hereby enacts the New Jersey Advance Directives for Health Care Act.

(N.J.S.A. 26:2H-54)

3. What types of advance directives can the patient use?

There are three kinds of advance directives that a patient can use to say what he wants and who he wants his physician to listen to:

A. Proxy Directive

Also called a "durable power of attorney for health care", this lets the patient name a "health care representative," such as a family member or friend, to make health care decisions on the patient’s behalf. The chosen proxy serves as the patient’s substitute, standing in for him in discussions with his physician and others responsible for his care.

B. Instruction Directive

Also called a "living will," this lets the patient provide written directions that spell out what kinds of medical treatments the patient would accept or refuse and the circumstances in which he wants his wishes implemented.

C. Combined Directive

This combines features of both the health care representative (proxy) and instruction directive. The patient prepares a single written document that designates a proxy and provides a statement of the patient’s medical treatment preferences.

(N.J.S.A. 26:2H-55)

4. How is an advance directive prepared?

A declarant may execute an advance directive for health care at any time. The advance directive shall be signed and dated by, or at the direction of, the declarant in the presence of two subscribing adult witnesses, who shall attest that the declarant is of sound mind and free of duress and undue influence. A designated health care representative shall not act as a witness to the execution of an advance directive. Alternatively, the advance directive shall be signed and dated by, or at the direction of, the declarant and be acknowledged by the declarant before a notary public, attorney at law, or other person authorized to administer oaths. An advance directive may be supplemented by a video or audio tape recording. A female declarant may include in an advance directive executed by her, information as to what effect the advance directive shall have if she is pregnant.

(N.J.S.A. 26:2H-56)

5. How is an advance directive reaffirmed, modified or revoked?

A. A declarant may reaffirm or modify either a proxy directive, or an instruction directive, or both. The reaffirmation or modification shall be made in accordance with the requirements for execution of an advance directive pursuant to section4 of this act.

B. A declarant may revoke an advance directive, including a proxy directive, or an instruction directive, or both, by the following means:

(1) Notification, orally or in writing, to the health care representative, physician, nurse or other health care professional, or other reliable witness, or by any other act evidencing an intent to revoke the document; or

(2) Execution of a subsequent proxy directive or instruction directive, or both, in accordance with section 4 of this act.

C. Designation of the declarant's spouse as health care representative shall be revoked upon divorce or legal separation, and designation of the declarant's domestic partner as health care representative shall be revoked upon termination of the declarant's domestic partnership, unless otherwise specified in the advance directive.

D. An incompetent patient may suspend an advance directive, including a proxy directive, an instruction directive, or both, by any of the means stated above. An incompetent patient who has suspended an advance directive may reinstate that advance directive by oral or written notification to the health care representative, physician, nurse or other health care professional of an intent to reinstate the advance directive.

E. Reaffirmation, modification, revocation or suspension of an advance directive is effective upon communication to any person capable of transmitting the information including the health care representative, the attending physician, nurse or other health care professional responsible for the patient's care.

(N.J.S.A. 26:2H-57)

6. When does an advance directive become operative?

A. An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution; and (2) it is determined that the patient lacks capacity to make a particular health care decision.

B. Treatment decisions pursuant to an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish, and where appropriate confirm, a reliable diagnosis and prognosis for the patient.

(N.J.S.A. 26:2H-59)

7. How does a physician make a determination of incapacity to make health care decisions?

A. The attending physician shall determine whether the patient lacks capacity to make a particular health care decision. The determination shall be stated in writing, shall include the attending physician's opinion concerning the nature, cause, extent, and probable duration of the patient's incapacity, and shall be made a part of the patient's medical records.

B. The attending physician's determination of a lack of decision making capacity shall be confirmed by one or more physicians. The opinion of the confirming physician shall be stated in writing and made a part of the patient's medical records in the same manner as that of the attending physician. Confirmation of a lack of decision making capacity is not required when the patient's lack of decision making capacity is clearly apparent, and the attending physician and the health care representative agree that confirmation is unnecessary.

C. If the attending physician or the confirming physician determines that a patient lacks decision making capacity because of a mental or psychological impairment or a developmental disability, and neither the attending physician or the confirming physician has specialized training or experience in diagnosing mental or psychological conditions or developmental disabilities of the same or similar nature, a determination of a lack of decision making capacity shall be confirmed by one or more physicians with appropriate specialized training or experience. The opinion of the confirming physician shall be stated in writing and made a part of the patient's medical records in the same manner as that of the attending physician.

D. A physician designated by the patient's advance directive as a health care representative shall not make or confirm the determination of a lack of decision making capacity.

E. The attending physician shall inform the patient, if the patient has any ability to comprehend that he has been determined to lack decision making capacity, and the health care representative that: (1) the patient has been determined to lack decision making capacity to make a particular health care decision; (2) each has the right to contest this determination; and (3) each may have recourse to the dispute resolution process established by the health care institution pursuant to section 14 of this act. Notice to the patient and the health care representative shall be documented in the patient's medical records.

F. A determination of lack of decision making capacity under this act is solely for the purpose of implementing an advance directive in accordance with the provisions of this act, and shall not be construed as a determination of a patient's incapacity or incompetence for any other purpose.

G. For purposes of this section, a determination that a patient lacks decision making capacity shall be based upon, but need not be limited to, evaluation of the patient's ability to understand and appreciate the nature and consequences of a particular health care decision, including the benefits and risks of, and alternatives to, the proposed health care, and to reach an informed decision.

(N.J.S.A. 26:2H-60)

8. What are the rights and responsibilities of the parties making health care decisions on behalf of the patient?

A. If it has been determined that the patient lacks decision making capacity, a health care representative shall have authority to make health care decisions on behalf of the patient. The health care representative shall act in good faith and within the bounds of the authority granted by the advance directive and by this act.

B. If a different individual has been appointed as the patient's legal guardian, the health care representative shall retain legal authority to make health care decisions on the patient's behalf, unless the terms of the legal guardian's court appointment or other court decree provide otherwise.

C. The conferral of legal authority on the health care representative shall not be construed to impose liability upon the health care representative for any portion of the patient's health care costs.

D. An individual designated as a health care representative or as an alternate health care representative may decline to serve in that capacity.

E. The health care representative shall exercise the patient's right to be informed of the patient's medical condition, prognosis and treatment options, and to give informed consent to, or refusal of, health care.

F. In the exercise of these rights and responsibilities, the health care representative shall seek to make the health care decision the patient would have made had he possessed decision making capacity under the circumstances, or, when the patient's wishes cannot adequately be determined, shall make a health care decision in the best interests of the patient.

(N.J.S.A. 26:2H-61)

In addition to any rights and responsibilities recognized or imposed by, or pursuant to, this act, or by any other law, physicians, nurses, and other health care professionals shall have the following rights and responsibilities:

A. The attending physician shall make an affirmative inquiry of the patient, his family or others, as appropriate under the circumstances, concerning the existence of an advance directive. The attending physician shall note in the patient's medical records whether or not an advance directive exists, and the name of the patient's health care representative, if any, and shall attach a copy of the advance directive to the patient's medical records. The attending physician shall document in the same manner the reaffirmation, modification, or revocation of an advance directive, if he has knowledge of such action.

B. A physician may decline to participate in the withholding or withdrawing of measures utilized to sustain life, in accordance with his sincerely held personal or professional convictions. In such circumstances, the physician shall act in good faith to inform the patient and the health care representative, and the chief of the medical staff or other designated institutional official, of this decision as soon as practicable, to effect an appropriate, respectful and timely transfer of care, and to assure that the patient is not abandoned or treated disrespectfully. In the event of transfer of a patient's care, the attending physician shall assure the timely transfer of the patient's medical records, including a copy of the patient's advance directive.

C. A nurse or other health care professional may decline to participate in the withholding or withdrawing of measures utilized to sustain life, in accordance with his sincerely held personal or professional convictions. In these circumstances, the nurse or other health care professional shall act in good faith to inform the patient and the health care representative, and the head of the nursing or other professional staff or other designated institutional official, of this decision as soon as practicable, to cooperate in effecting an appropriate, respectful and timely transfer of care, and to assure that the patient is not abandoned or treated disrespectfully.

D. Nothing in this act shall be construed to require a physician, nurse or other health care professional to begin, continue, withhold, or withdraw health care in a manner contrary to law or accepted professional standards.

(N.J.S.A. 26:2H-62)

9. How are the patient’s health care wishes implemented?

A. The attending physician, the health care representative and, when appropriate, any additional physician responsible for the patient's care, shall discuss the nature and consequences of the patient's medical condition, and the risks, benefits and burdens of the proposed health care and its alternatives. Except as provided by subsection b. of this section, the attending physician shall obtain informed consent for, or refusal of, health care from the health care representative.

(1) Discussion of the proposed treatment and its alternatives shall include, as appropriate under the circumstances, the availability, benefits and burdens of rehabilitative treatment, therapy, and services.

(2) The decision making process shall allow, as appropriate under the circumstances, adequate time for the health care representative to understand and deliberate about all relevant information before a treatment decision is implemented.

B. Following a determination that a patient lacks decision making capacity, the health care representative and the attending physician shall, to a reasonable extent, discuss the treatment options with the patient, and seek to involve the patient as a participant in the decision making process. The health care representative and the attending physician shall seek to promote the patient's capacity for effective participation and shall take the patient's expressed wishes into account in the decision making process.

Once decision making authority has been conferred upon a health care representative pursuant to an advance directive, if the patient is subsequently found to possess adequate decision making capacity with respect to a particular health care decision, the patient shall retain legal authority to make that decision. In such circumstances, the health care representative may continue to participate in the decision making process in an advisory capacity, unless the patient objects.

Notwithstanding any other provision of this act to the contrary, if a patient who lacks decision making capacity clearly expresses or manifests the contemporaneous wish that medically appropriate measures utilized to sustain life be provided, that wish shall take precedence over any contrary decision of the health care representative and any contrary statement in the patient's instruction directive.

C. In acting to implement a patient's wishes pursuant to an advance directive, the health care representative shall give priority to the patient's instruction directive, and may also consider, as appropriate and necessary, the following forms of evidence of the patient's wishes:

(1) The patient's contemporaneous expressions, including nonverbal expressions;

(2) Other reliable sources of information, including the health care representative's personal knowledge of the patient's values, preferences and goals; and

(3) Reliable oral or written statements previously made by the patient, including, but not limited to, statements made to family members, friends, health care professionals or religious leaders.

D. If the instruction directive, in conjunction with other evidence of the patient's wishes, does not provide, in the exercise of reasonable judgment, clear direction as applied to the patient's medical condition and the treatment alternatives, 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.

E. Subject to the provisions of this act, and unless otherwise stated in the advance directive, 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)

10. What procedures must be followed in the absence of a designated health care representative?

A. If the patient has executed an instruction directive but has not designated a health care representative, or if neither the designated health care representative or any alternate designee is able or available to serve, the instruction directive shall be legally operative. If the instruction directive provides clear and unambiguous guidance under the circumstances, it shall be honored in accordance with its specific terms by a legally appointed guardian, if any, family members, the physicians, nurses, other health care professionals, health care institutions, and others acting on the patient’s behalf.

B. If the instruction directive is, in the exercise of reasonable judgment, not specific to the patient’s medical condition and the treatment alternatives, the attending physician, in consultation with a legally appointed guardian, if any, family members, or others acting on the patient’s behalf, shall exercise reasonable judgment to effectuate the wishes of the patient, giving full weight to the terms, intent and spirit of the instruction directive. Departure from the specific terms and provisions of the instruction directive shall be based upon clearly articulable factors not foreseen or contemplated by the instruction directive, including, but not limited to, the circumstances of the patient’s medical condition.

(N.J.S.A. 26:2H-64)

11. What are the rights and responsibilities of health care institutions with respect to advance directives?

A. In addition to any rights and responsibilities recognized or imposed by, or pursuant to, this act, or any other law, a health care institution shall have the following rights and responsibilities:

(1) A health care institution shall adopt such policies and practices as are necessary to provide for routine inquiry, at the time of admission and at such other times as are appropriate under the circumstances, concerning the existence and location of an advance directive.

(2) A health care institution shall adopt such policies and practices as are necessary to provide appropriate informational materials concerning advance directives to all interested patients and their families and health care representatives, and to assist patients interested in discussing and executing an advance directive.

(3) A health care institution shall adopt such policies and practices as are necessary to educate patients and their families and health care representatives about the availability, benefits and burdens of rehabilitative treatment, therapy and services, including but not limited to family and social services, self-help and advocacy services, employment and community living, and use of assistive devices. A health care institution shall, in consultation with the attending physician, assure that such information is discussed with a patient and his health care representative and made a part of the decision making process as appropriate under the circumstances.

(4) In situations in which a transfer of care is necessary, including a transfer for the purpose of effectuating a patient's wishes pursuant to an advance directive, a health care institution shall, in consultation with the attending physician, take all reasonable steps to effect the appropriate, respectful and timely transfer of the patient to the care of an alternative health care professional or institution, as necessary, and shall assure that the patient is not abandoned or treated disrespectfully. In such circumstances, a health care institution shall assure the timely transfer of the patient's medical records, including a copy of the patient's advance directive.

(5) A health care institution shall establish procedures and practices for dispute resolution.

(6) A health care institution shall adopt such policies and practices as are necessary to inform physicians, nurses and other health care professionals of their rights and responsibilities under this act, to assure that such rights and responsibilities are understood, and to provide a forum for discussion and consultation regarding the requirements of this act.

B. A private, religiously-affiliated health care institution may develop institutional policies and practices defining circumstances in which it will decline to participate in the withholding or withdrawing of specified measures utilized to sustain life. Such policies and practices shall be written, and shall be properly communicated to patients and their families and health care representatives prior to or upon the patient's admission, or as soon after admission as is practicable.

If the institutional policies and practices appear to conflict with the legal rights of a patient wishing to forego health care, the health care institution shall attempt to resolve the conflict, and if a mutually satisfactory accommodation cannot be reached, shall take all reasonable steps to effect the appropriate, timely and respectful transfer of the patient to the care of another health care institution appropriate to the patient's needs, and shall assure that the patient is not abandoned or treated disrespectfully.

C. Nothing in this act shall be construed to require a health care institution to participate in the beginning, continuing, withholding or withdrawing of health care in a manner contrary to law or accepted medical standards.

(N.J.S.A. 26-2H-65)

12. What are the procedures to follow in the event of disagreement concerning the patient’s decision making capacity or the appropriate interpretation of an advance directive?

A. In the event of disagreement among the patient, health care representative and attending physician concerning the patient’s decision making capacity or the appropriate interpretation and application of the terms of an advance directive to the patient’s course of treatment, the parties may seek to resolve the disagreement by means of procedures and practices established by the health care institution, including but not limited to, consultation with an institutional ethics committee, or with a person designated by the health care institution for this purpose or may seek resolution by a court of competent jurisdiction.

B. A health care professional involved in the patient’s care, other than the attending physician, or an administrator of a health care institution may also invoke the dispute resolution process established by the health care institution to seek to resolve a disagreement concerning the patient’s decision making capacity or the appropriate interpretation and application of the terms of an advance directive.

(N.J.S.A. 26:2H-66)

13. When is it appropriate to withhold or withdraw life-sustaining treatment from a patient?

A. Consistent with the terms of an advance directive and the provisions of this act, life-sustaining treatment may be withheld or withdrawn from a patient in the following circumstances:

(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 an imminent dying process;

(2) When the patient is permanently unconscious, as determined by the attending physician and confirmed by a second qualified physician;

(3) When the patient is in a terminal condition, as determined by the attending physician and confirmed by a second qualified physician; or

(4) In the event none of the above circumstances applies, when the patient has a serious irreversible illness or condition, and the likely risks and burdens associated with the medical intervention to be withheld or withdrawn may reasonably be judged to outweigh the likely benefits to the patient from such intervention, or imposition of the medical intervention on an unwilling patient would be inhumane. In such cases prior to implementing a decision to withhold or withdraw life-sustaining treatment, the attending physician may promptly seek consultation with an institutional or regional reviewing body or may promptly seek approval of a public agency recognized by law for this purpose.

B. Nothing in this section shall be construed to impair the obligations of physicians, nurses and other health care professionals to provide for the care and comfort of the patient and to alleviate pain, in accordance with accepted medical and nursing standards.

C. Nothing in this section shall be construed to abridge any constitutionally-protected right to refuse treatment under either the United States Constitution or the Constitution of the State of New Jersey.

(N.J.S.A. 26:2H-67)

14. Who can issue a do not resuscitate order?

A. Consistent with the terms of an advance directive and the provisions of this act, the attending physician may issue a do not resuscitate order.

B. A do not resuscitate order shall be entered in writing in the patient’s medical records prior to implementation of the order.

C. Nothing in this act shall be construed to impair any existing authority to issue a do not resuscitate order when the patient has not executed an advance directive.

(N.J.S.A. 26:2H-68)

15. What are the legal rights of all parties involved in decision making pursuant to an advance directive?

A. A health care representative shall not be subject to criminal or civil liability for any actions performed in good faith and in accordance with the provisions of this act to carry out the terms of an advance directive.

B. A health care professional shall not be subject to criminal or civil liability or to discipline by the health care institution or the respective State licensing board for professional misconduct for any actions performed in good faith and in accordance with the provisions of this act, any rules and regulations established by the Department of Health pursuant to this act, and accepted professional standards to carry out the terms of an advance directive.

C. A health care institution shall not be subject to criminal or civil liability for any actions performed in good faith and in accordance with the provisions of this act to carry out the terms of an advance directive.

(N.J.S.A. 26:2H-73)

Copyright © Kern Augustine Conroy and Schoppmann, P.C. Used with permission.

Updated 2008