Advance Health Care Directive (NJ)
This Advance Health Care Directive (NJ) helps individuals select authorized representatives and provide healthcare instructions on the event of incapacity. A Health Care Proxy (New Jersey) is another common term for this document. This Advance Health Care Directive is the New Jersey equivalent of the New York Health Care Proxy and Living Will. A competent adult residing in New Jersey may create an Advance Health Care Directive. This document appoints a third party to serve as a health care representative in the event of the adult’s incapacity. (Some other states refer to the health care representative as a health care agent.) Additionally, this document provides instructions for health care on the event of incapacity. These proxy and instruction directives may be separate documents or combined together in one advance directive document. This Advance Health Care Directive combines proxy and instruction directives into one document.
Just as having a last will and testament is an important part of family estate planning in New Jersey, having an advance health care directive is also very important, especially now due to the coronavirus covid-19 pandemic.
How an Advance Health Care Directive Works
This Advance Health Care Directive refers to the individual making the advance directive as the declarant. This document refers to the appointed third party as the health care representative or agent. This document helps the declarant keep control over health care decisions if incapacitated. It helps by appointing a trusted individual to carry out the declarant’s health care wishes. Simultaneously, this document helps the declarant by also providing guidance to the appointed representative in fulfilling the declarant’s wishes. Third party healthcare providers can then look to the designated agent, as they would look to a declarant with capacity. Then, the agent could provide authorization and consent to medical procedures and courses of treatment if the declarant is incapacitated. Because maintaining control of health care choices is an important issue, individuals include this document in most estate plans.
Capacity to Execute an Advance Directive
To execute the advance directive, the declarant must be 18 years of age or older. Additionally, the declarant must have the requisite mental competence to execute the document. All adults are presumed to be competent to appoint a health care representative unless a court finds them incompetent. However, it must be apparent to witnesses or the person notarizing the document that the declarant is of sound mind. Moreover, it must be apparent that the declarant is free of duress and undue influence when executing the document. Once a person has been found to be incompetent, the person can no longer execute an advance directive.
Advance Directive Only Effective on Incapacity
The declarant continues making healthcare decisions until the attending physician or healthcare institution receives the advance directive. Additionally, the declarant continues making decisions until their attending physician determines they no longer have the capacity for such decisions. The attending physician must put this determination in writing. The writing should include the physician’s opinion on the nature, cause, extent, and probable duration of incapacity. The physician must include the determination in the declarant’s medical records. At least one other physician must confirm the attending physician’s determination of incapacity. However, such confirmation is not required when the patient’s lack of decision-making capacity is obvious (e.g., the patient is comatose). The confirming opinion must also be: (i) in writing; and (ii) entered into the patient’s medical record. Lastly, an incapacitated person may revoke or suspend a health care directive and reinstate a directive that was previously suspended.
Suspension of Advance Directive
The declarant can suspend the advance directive, even if incapacitated. The declarant may do so by oral or written notification to a reliable witness. A reliable witness may include the health care representative, physician, nurse, or members of the provider’s staff. Further, the declarant may suspend the advance directive by any act showing an intent to revoke the document. An incapacitated declarant may reinstate the advance directive by providing oral or written notification of his or her intent to reinstate the directive. Incapacitated declarants may reinstate the advance directive by notifying a health care representative physician, nurse, or other health care professional. A valid, subsequently executed advance directive revokes a prior advance directive.