New Jersey

Health

Instrument: Advance directive (AD)

What is it for?
An “advance directive for health care” or “advance directive” (AD) means a written instruction or proxy regarding health care decisions for the declarant after the declarant is determined to lack decision making capacity.

An “instruction directive” informs others of the declarant’s wishes for health care in the event that the declarant subsequently lacks decision making capacity. An instruction directive may state the declarant’s general treatment philosophy and objectives; or the declarant’s specific wishes regarding the provision, withholding, or withdrawal of any form of health care, including life-sustaining treatment; or both.

By contrast, a “proxy directive” designates a health care representative to make decisions on the declarant’s behalf. N.J. Rev. Stat. § 26:2H-56. An instruction directive may also be referred to as a “living will,” and a proxy directive may also be referred to as a “durable power of attorney for health care.”

What does it do?
Through a proxy directive, a declarant may designate one or more alternate health care representatives. When making a decision on the declarant’s behalf, the health care representative must 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. Rev. Stat. § 26:2H-61. Notwithstanding an incapacity determination, the health care representative and the attending physician must, 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. N.J. Rev. Stat. § 26:2H-63.

If the patient has executed an instruction directive but has not designated a health care representative, the instruction directive is binding on anyone acting on behalf of the declarant to make health care decisions, so long as the directive contains clear and unambiguous guidance under the circumstances. N.J. Rev. Stat. § 26:2H-64.

How does one make it?
An AD must be signed and dated by, or at the direction of, the declarant in the presence of two adult witnesses. The witness must attest that the declarant is of sound mind and free of duress and undue influence. A designated health care representative may not act as a witness. Alternatively, the AD can 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 AD may also be supplemented by a video or audio tape recording. N.J. Rev. Stat. § 26:2H-56.

When does it come into effect?
An AD becomes operative only after it is transmitted to the attending physician or to the health care institution, and also it is determined that the patient lacks capacity to make a particular health care decision. N.J. Rev. Stat. § 26:2H-59.

Only an attending physician may determine in writing whether the patient lacks capacity to make a particular health care decision. The determination must include the attending physician’s opinion concerning the nature, cause, extent, and probable duration of the patient’s incapacity, and be made a part of the patient’s medical records. The attending physician’s incapacity determination must be confirmed by one or more physicians, and confirmation must also be made in writing. However, 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. Where incapacity is due to a developmental disability, then the confirmation must be made by a physician with appropriate specialized training or experience relating to developmental disability, if the attending physician does not have relevant training or experience. The declarant must also be informed of the incapacity determination only “if the patient has any ability to comprehend that he has been determined to lack decision making capacity.” N.J. Rev. Stat. § 26:2H-60.

“Decision making capacity” is defined as a patient’s ability to understand and appreciate the nature and consequences of health care decisions, including the benefits and risks of each, and alternatives to any proposed health care, and to reach an informed decision. Note that a patient’s decision making capacity is evaluated relative to the demands of a particular health care decision.

How long does it last?
Presumably, until the declarant dies or revokes the AD.

How does one end it?
A declarant may revoke an AD, including a proxy directive, or an instruction directive, or both, either by notifying orally or in writing the health care representative, physician, nurse, or other health care professional, or other reliable witness of the revocation; or by any other act evidencing an intent to revoke the document; or by executing a subsequent proxy directive or instruction directive, or both. Additionally, a declarant who “lacks mental capacity” may “suspend” and then “reinstate” an AD by the same means. N.J. Rev. Stat. § 26:2H-57.

What does an example look like?
The New Jersey Department of Health has created forms for establishing both a proxy directive and an instruction directive.

What else should one know?
Health care institutions must make reasonable inquiries about the existence of ADs should a patient’s decision making capacity be questioned.

Last updated April 2021