IMPORTANCE OF A LIVING WILL

Making Decisions About Your Care And Treatment: Your Rights As a Patient In New Jersey presented by The Law Office of W. Craig Knaup P.C.

Introduction:

In New Jersey, competent adults have the right to decide whether to accept, reject or discontinue medical care and treatment.  If you do not wish to undergo a certain procedure or to receive a certain type of treatment, you have the right to make your wishes known to your doctor or other health care provider and generally to have those wishes respected.

There may be times, however, when a person cannot make his or her wishes known to a health care provider.  For example, a person may be unconscious or too badly injured to tell his or her doctor what kind of care or treatment he or she would like to receive or under what circumstances that doctor should withhold care or treatment.

The purpose of this brochure is to let you know what the law currently has to say about your rights as a competent adult to tell other people now if and how you would like to receive medical care and treatment from a health care provider in the event that you need medical attention but become physically or mentally unable to give instructions about your care and treatment later.  It also tells you what New Jersey law has to say about the duty of a health care provider to follow your Advance Directive.

Questions and Answers: General Information About Your Rights

1. What are my rights to accept, to reject or to stop medical care or treatment?

In New Jersey, competent adults generally have the right to decide if they want to accept, to reject or to discontinue medical care and treatment.

2. What does my doctor have to tell me about my care and treatment?

Your doctor should provide you with all of the information which a person in your situation reasonably would want to know in order to make an informed decision about a proposed procedure or course of treatment.  This means that your doctor should tell you about the risks and benefits of the medical procedure or course of treatment which he or she is recommending, possible "side effects," and alternatives, if any, to the proposed procedure or course of treatment.  You may accept or reject your doctor's advice and you may seek a second opinion.  The member shall be entitled, as appropriate under the circumstances, to an adequate amount of time in which to understand and deliberate over whether to accept the recommended treatment.

3. Does my health care provider have to tell me if it will not honor my wishes?

Yes.  The law requires your health care provider (hospital, nursing home, home health care service, hospice or HMO) to give you a written statement of its policies.  For example, upon admission to a hospital, a patient must be told if that hospital will not honor his or her wish to have food and water withheld or withdrawn under certain circum­stances.  Physicians, nurses, and other health care professionals may decline to participate in the withdrawing of life-sustaining measures, in accordance with sincerely held personal beliefs, where the health care professional acts in good faith to inform the member and institutional official of such beliefs in order that the member is not abandoned or treated disrespectfully.

4. If I become physically or mentally unable to make a decision about my medical care or treatment, what can I do now to guarantee that my wishes will be followed later?

There is no law in New Jersey which guarantees that a health care provider will follow your instructions in every circumstance.  There are, however, steps you can take to express your wishes about future treatment.  One of these steps is to prepare and sign an Advance Directive for Health Care.  In New Jersey, an Advance Directive may include one (1) or two (2) legal documents: a "Proxy Directive" (also known as a "Designation of a Health Care Representative") and/or an "Instruction Directive."

5. What are these documents?

a.                   A "Proxy Directive" or "Designation of a Health Care Representative" lets you name someone to make decisions about your medical care-including decisions about life support-if you are unable to make health care decisions for yourself The Proxy Directive or Designation of a Health Care Representative is especially useful because it appoints someone to speak for you any time you are unable to make your own medical decisions, not only at the end of life.  Before your Health Care Representative can make decisions on your behalf, your doctor or treating health care institution must receive a copy of the document, and your attending physician and, in some cases, one other doctor must confirm that you are unable to make health care decisions.  Where it is clearly apparent that the mem­ber is unable to make health care deci­sions, the attending physician and health-care representative may agree that confirmation by another physician is unnecessary.

b.                  The "Instruction Directive" is a statement of your general treatment philosophy and objectives; or of your specific wishes regarding the provision, withholding or withdrawal of any form of health care, including life-sustaining treatment; or both.  The Directive becomes effective once a copy of the document is given to your doctor or treating health care institution, your attending physician and, in some cases, one other doctor confirm that you are unable to make health care decisions.

Instruction Directive

6. How do I make my "Instruction Directive" legal and operational?

The law requires that you have your New Jersey Instruction Directive witnessed.  You can do this in either of two ways:

            a.         Sign and date your document in the presence of two adult witnesses, who must also sign to show that you signed the document in their presence, that they believe you to be of sound mind, free of duress, and undue influence, and that they are not designated as your Health Care Representative or alternate.

OR

            b.         Sign and date your document in the presence of a lawyer or notary public and have your signature notarized.

7. What does it mean to "lack decision-making capacity"?

It means "the lack of a person's ability to understand and appreciate the nature and consequence of health care decisions including the benefits and risks of each, and alternatives to any proposed health care, and to reach an informed decision.  A patient's decision-making capacity is evaluated relative to the demands of a particular health care decision."  The law allows doctors to decide if you lack decision-making capacity for purposes of implementing an "Instruction Directive" and does not require a judge to make that decision.

8. What if I already have an "Instruction Directive"?

You should review any Instruction Directive previously drafted to see that it reflects your current wishes and meets the requirements described in the answer to Question 6.

9. To whom should I give my "Instruction Directive"?

a.                   Your New Jersey Instruction Directive is an important legal document.  Keep the original signed document in a secure, but accessible place.  Do not put the original form in a safe deposit box or any other security box that would keep others from having access to it.

b.                  Give photocopies (xerox copies) of the signed original to your Health Care Representative and alternate Health Care Representative, to your doctor(s), family, close friends, clergy and anyone else who might become involved in your health care.  If you enter a nursing home or hospital, have xerox copies of your document placed in your medical records.

c.                   Be sure to talk to your Health Care Representative (and alternate Health Care Representative), your doctor(s), clergy, and family and friends about your wishes concerning medical treatment.  Discuss your wishes with them often, particularly if your medical condition changes.

d.                  Any changes to the Instruction Directive must be in writing and witnessed or notarized as described in the answer to Question 6.  The change to the Instruction Directive is effective when you communicate to any person capable of transmitting the information concerning your intent to change the directive, including the health care representative, the attending physician, the nurse, or another health care professional responsible for the patient's care.

e.                   Revocation of an Instruction Directive may be accomplished by giving oral or written direction to your health care representative or to a physician, nurse, other health care professional, or another reliable witness, or by any other evidencing an intent to revoke the directive.

10. What if my doctor or health care provider refuses to follow the directions in my "Instruction Directive"?

Physicians and other health care providers in New Jersey have the right to refuse to participate in the withholding or withdrawal of treatment in accordance with personal or professional convictions, as described in the answer to Question 3.  Your doctor and any other health care provider must tell you if they cannot in good conscience follow your wishes or if the policies of the institution prevent them from honoring your wishes.  This is one reason why you should give a copy of your Instruction Directive to your doctor or to those in charge of your medical care and treatment.

If you are incompetent when you are admitted for medical care and have named a Health Care Representative to make decisions for you, that person must be told if the wishes contained in your Instruction Directive cannot be honored.  If you have not designated a Health Care Representative, your family, guardian or other representative must be informed that your Instruction Directive cannot be honored.

The doctor or other health care provider who cannot honor your wishes must then help transfer you to another health care provider willing to carry out your directions.

11. Is an "Instruction Directive" effective when I am pregnant?

New Jersey law permits a woman to include in her Instruction Directive information as to what effect the Instruction Directive is to have if she is pregnant.

12. What if I change my mind after I have written an "Instruction Directive"?

You may revoke your Instruction Directive by:

§         notifying your Health Care Representative, your doctor or other health care provider, or a reliable witness, of your revocation; this may be done orally, in writing, or by any other act which demonstrates your intent to revoke your Instruction Directive; or

"Proxy Directive" or "Designation of a Health Care Representative"

13. How do I make my New Jersey "Designation of a Health Care Representative" legal?

Like an Instruction Directive, your Designation of a Health Care Representative must be signed, dated and witnessed.  You can do this either of two ways:

            a.         Sign and date your document in the presence of two witnesses, who must also sign to show that you signed the document in their presence, believe you to be of sound mind, free of duress and undue influence, and that they are not designated as your Health Care Representative or alternate.

OR

            b.         Sign and date your document in the presence of a lawyer or notary public and have your signature notarized.

14. Should I add personal instructions to my "Designation of a Health Care Representative"'?

One of the strongest reasons for naming a Health Care Representative is to have someone who can respond flexibly as your medical condition changes, and can deal with situations that you did not foresee.  If you add instructions to this document, you might unintentionally restrict your Health Care Representative's power to act in your best interests.

Instead, we urge you to talk with your Health Care Representative about your future medical care, and to describe what you consider to be an acceptable "quality of life."  If you want to record your wishes about specific treatments or conditions, you should specify them in your Instruction Directive.

15. Whom should I designate as my Health Care Representative?

Your Health Care Representative is the person you appoint to make decisions about your medical care if you become unable to make those decisions yourself.  Your Representative may be a family member or a close friend whom you trust to make these serious decisions.  The person you name as your Representative should clearly understand your wishes, and be willing to accept the responsibility of making medical decisions for you.  (A Health Care Representative may also be called an "agent" or "proxy.")

An operator, administrator or employee of your treating health care institution cannot serve as your Health Care Representative unless he or she is related to you by blood, marriage or adoption.  The member should be aware that designation of a spouse as Health Care Representative is revoked upon divorce or legal separation, unless otherwise specified in the advance directive.  A doctor may serve as your Representative as long as he or she is not serving as your attending physician at the same time.

You can also appoint a second and third person as your alternate Representative.  The alternate will step in if the first person you name as agent is unable, unwilling or unavailable to act for you.

16. May I have both a "Proxy Directive/Designation of a Health Care Representative" and an "Instruction Directive"?

Yes.

17. What if I change my mind after I designate a Health Care Representative?

You may revoke your Designation of a Health Care Representative by:

·          notifying your Representative, your doctor or other health care provider, or a reliable witness, of your revocation; this may be done orally, in writing, or by any other act which demonstrates your intent to revoke your Representative's power; or

Discussing Your Instructions With Others

18. With whom should I discuss my instructions before I write them down?

Before you write your instructions down, you may wish to discuss them with your doctor, members of your family, friends, your personal attorney, or other appropriate persons-such as a member of the clergy.  If you are writing a Designation of a Health Care Representative, you should also discuss your wishes with the person you are naming as your "Representative."

19. What if I don't leave instructions or name a person who will make decisions for me?

If you become unable to express your wishes about your medical care or treatment and do not leave instructions or name a person who will make decisions for you, a health care provider may ask your family or the courts to make decisions about your care and treatment.

20. What if I have expressed my wishes orally about treatment, but have not put my wishes in writing?

Oral directions which you have given to your physician or family will sometimes he followed by health care providers, depending on how detailed and recent those instructions were.  Thus, you may wish to tell your personal physician and your family your wishes about future treatment, even if you choose not to sign a formal Advance Directive document.

21. Do I have to write an "Advance Directive" document or a "Designation of a Health Care Representative" or "Instruction Directive" for health care?

No.  It's your decision.  Under the law, a health care provider may not condition the provision of your care or otherwise discriminate against you on the basis of whether you have executed either or both of those documents.

22. Are "Advance Directives" executed in other states recognized in New Jersey?

Generally, Advance Directives executed under the laws of another State or another country, in compliance with the laws of that state or the state of New Jersey and not contrary to the public policy of New Jersey, are recognized and considered valid.

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