A LEGAL GUIDE ON LIVING WILLS
The information below describes your legal rights concerning health care decisions and living wills. It explains your legal right to make decisions about your health care under New Jersey law, and it tells you how to plan for your health care if you become unable to decide for yourself because of an illness or accident.
1. Why should I consider writing a living will?
A serious injury, illness, or mental incapacity may make it impossible for you to make any healthcare decisions for yourself. In these real-life situations, those responsible for your care will be forced to make these decisions for you. A living will is simply a legal document that provides information about your treatment preferences to those caring for you, helping to ensure that your wishes are respected even when you can’t make decisions yourself. A written living will help prevent disagreements among those close to you. Moreover, a living will reduce some of the burdens of decision making which are often experienced by family members, friends, and health care providers.
2. What happens if I’m unable to decide about my health care?
If you should become unable to make treatment decisions because of an illness or an accident, then those caring for you will need to know about your values and wishes in making decisions on your behalf. Therefore, it is critically important to have a living will in this day and age. If you don’t have a living will then you could be forced to live as a vegetable for many years.
3. Where should I keep my living will?
In addition to the client keeping a copy of the living will, copies should be distributed to the health care representative and the alternate. Moreover, a copy should be given to your physician. Family members, friends, or anyone else who is likely to be involved in your health care treatments should also be given a copy.
4. Will the terms of my living will be followed?
Yes. Everyone responsible for your care must respect and comply with the directives and wishes that you have specified in your living will. However, if your doctor, nurse, or other professional has a sincere objection to respecting your wishes to refuse life-sustaining treatment, then he or she may have your care transferred to another professional who will carry them out.
5. Does New Jersey recognize living wills as legally binding documents?
Absolutely. In 1990, the Supreme Court of the United States confirmed that a person’s right to make choices about medical care is protected by the Bill of Rights. Under New Jersey law a living will are a legal and binding legal document. Moreover, hospitals and physicians must also honor your living will.
6. What happens if I regain the ability to make my own healthcare decisions?
If you should regain the ability to make your own health care decisions, then you will have the legal authority to make any decisions regarding your health care and treatment. Thereafter, the person who holds holding your medical power of attorney will not be able to make these decisions for you.
7. What if I don’t have a living will?
If you should become unable to make treatment decisions and if you do not have a living will then your close family member(s) will talk to your doctor and make these decisions on your behalf. However, if your family members or physicians disagree about your medical care, then it may be necessary for a court to intervene and appoint someone as your legal guardian. This also may be legally required if you do not have a family member to make decisions on your behalf. That is why it is very important to put your wishes in writing to make it clear who should decide for you, and to help your family and doctor know your intentions.
8. Will I still be treated if I don’t have a living will?
Yes. You will still receive medical treatment even if you do not have a living will. Your health insurance company also can’t deny coverage based on whether or not you have a living will.
9. How are living wills executed?
A competent adult may execute a living will at any time. The living will be signed by the declarant and witnessed by either two adult witnesses or a notary public or lawyer. The witnesses must also attest to the sound mind of the declarant, and that the living will be executed free of duress or undue influence. The health care representative or the agent as listed in the living will is ineligible to act as a witness. In New Jersey, the agent is also referred to as a healthcare representative. New Jersey recognizes living wills executed in other states as long as they comply with the laws of New Jersey.
10. How can I make any changes to a living will?
A living will be modified at any time, as long as the declarant (the person who makes the living will)still has the ability to make sound decisions. If there are any changes to the living will, they should also be witnessed and dated.
11. How can I revoke my living will?
A living will be revoked at any time. A revocation takes effect upon oral or written notification to a health care representative, doctor, nurse, or any other health care professional or another reliable witness. Any act that evidence a desire to revoke the instrument will also be seen as a valid act for purposes of revocation. The execution of subsequent instruments will also act to revoke any previous such documents.
12. Who should I name as my health care representative?
The person you choose to be your health care representative has the legal right to accept or refuse medical treatment (including Life-sustaining measures) on your behalf and to assure that your wishes concerning your medical treatment are carried out. You should choose a person who knows you well and who is familiar with your feelings about different types of medical treatment and the conditions under which you would choose to accept or refuse either a specific treatment or all treatments. A healthcare representative must also understand that his or her responsibility is to implement your wishes even if your representative or others might disagree with them. Therefore, it is important to select someone in whose judgment you have confidence.
13. What else do I need to know about choosing a healthcare representative in New Jersey?
When you choose your healthcare representative, the most important criteria are trustworthiness and dependability. You might also want to choose someone you think will be good at asserting your healthcare wishes if others argue against them. The health care representative must be able to be persistent or calm under pressure. While you need not name someone who lives in New Jersey, the person you name should at least be willing and able to travel to your bedside if necessary. Your healthcare representative will begin to make healthcare decisions for you when you cannot do so.
14. When does my living will take effect?
Your living will take effect when you no longer have the ability to make certain decisions about your health care. This judgment is normally made by your attending physician, and by any additional physicians who may be required by law to examine you. If there is any doubt about your ability to make such decisions, your doctor will consult with another doctor with training and experience in this area. Together they will decide if you are unable to make your own healthcare decisions.
15. What happens if I should regain the ability to make my own decisions?
If you should regain your ability to make decisions, then you will resume making your decisions directly. Your living will is in effect as long as you are unable to make your own decisions.
