We all know that catastrophic injuries and deteriorating health can impact anyone.
We also know that our death is a reality that cannot be avoided.
Serious medical and health care decision-making and end of life decision-making is hard to discuss.
Think about this:
What is important to you?
Is it the quality of your life or the length of your life?
With a well written Health Care Directive and Living Will, you authorize someone to make medical decisions for you if you’re unable to; you define and describe under what circumstances you wish to be kept alive or be allowed to die. This document is so important. You cannot fully appreciate the wisdom and value of what I have just stated unless and/or until you face a serious medical condition or a life or death decision for someone very close to you. Please do not delay in having this document prepared for you today.
Someone should be available to make medical decisions for you if you are unable to make them!
Every Person Should Have An Advanced Healthcare Directive and Living Will in NJ
Advance Medical Directives
An individual’s right to make decisions regarding his or her medical treatment is protected by the United States Constitution. In 1992, New Jersey enacted the New Jersey Advance Directives for Health Care Act (Advance Directives Act). The Advance Directives Act was enacted to allow “competent adults to plan ahead for health care decisions” in the event the individual loses decision-making capacity or is unable to “participate actively in making his or her own health care decisions.” Under the Advance Directives Act, an individual can execute advance directives, such as a living will, health care proxy or durable power of attorney, to express their wishes regarding medical treatment.
The advance directive for health care becomes operative when it is given to the individual’s attending physician or health care institution and it is determined that the individual lacks capacity to make a particular health care decision. An individual can reaffirm, modify or revoke his advance directive for health care or POLST at any time prior to incapacity. An advance directive for health care can be revoked by notifying, either orally or in writing, the health care representative or physician evidencing an intent to revoke.
Mental Incapacity and Your Healthcare Directive
Once a person is adjudicated mentally incapacitated, he or she can no longer exercise the right to execute an advance directive pursuant to the Advance Directives Act. If an individual is incapacitated and has no advance directive, then the individual’s guardian has the duty to determine, subjectively, the medical decisions the incapacitated individual would have made if competent. The guardian is to apply a substituted judgement or subjective test to determine the incapacitated person’s intent with respect to medical treatment. In the event there is not enough evidence of an individual’s subjective intent regarding medical treatment, a limited objective test can be used. Under the limited objective test, life-sustaining treatment can be withdrawn if some trustworthy evidence shows that this action complies with the individual’s intent and it is clear that the burden of the individual’s continued treatment outweighs the benefits of that life for him or her. If there is reliable evidence of an individual’s intent, uphold or withdraw life-sustaining treatment, the guardian must determine that the net benefits of the individual’s life with treatment “clearly and it outweighs the benefits that the individual derives from life.”
I have written extensively about medical decision making by guardians. You can read more about this topic by clicking here.
What is a POLST and How Does it Differ From a Medical Directive?
A “Physician Orders for Life-Sustaining Treatment” or “POLST” was enacted by New Jersey to supplement an individual’s medical directive. A POLST form provides instructions to caregivers, family and others as to an individual’s health care wishes and end-of-life decisions.
Unlike the medical directive that is not a medical order (rather it expresses an individual’s intent as to a nominated health-care proxy and what should be done if the individual is unable to make his or her own health care decisions), the POLST form converts an individual’s medical wishes regarding health care treatment into a medical order that health care professionals must follow. The POLST form is designed for seriously ill patients or those who are medically given limited life expectancy, regardless of age. The form is to be completed and signed by the individual and his physician or advanced practice nurse (“APN”).
With a medical directive, living will and health care instruction prepared by Hanlon Niemann & Wright:
- You can select a person to make medical decisions for you if you are unable to communicate your feelings, etc. when an important medical decision needs to be made. You can select the standard of death (brain vs. breath) you prefer should your condition become terminal.
- Your Health Care Directive and Living Will can specify the level of heroic efforts that can be taken to preserve your life if a highly life-threatening condition strikes.
- You pick your life/death options (when, if, how), not a judge. In other words, you decide when enough is enough… or not enough.
- You can choose not to be kept alive but instead medicated, hydrated, and kept pain free should your condition be deemed terminal and irreversible.
- You can spare your loved ones of the guilt of ending your life by discussing how you feel about end of life decision-making and the quality of and independence of your life.
- Hanlon Niemann & Wright has 40+ years of trusted, real life experience in drafting Health Care Directives and Living Wills.
The Importance of Having a Living Will and Medical Directive Which Allows Access to Your Protected Health and Medical Records
Medical privacy laws exist in every state and are mandated by both Federal and New Jersey law(s).
Unless you give written authorization to a representative, doctors, nurses, hospitals, laboratories and other health care providers will often not release your medical records, charts, diagnosis, or treatment history to anyone absent a court order. This includes spouses and adult children. Don’t delay in having a Medical Directive and Living Will prepared today.
Can I Control What Happens to my Corpse After my Passing?
While working on health care directives, I have had clients ask me about leaving special instructions for their loved ones on what they can do with their bodies, whether it can be donated “for science” or if organs can be prioritized for loved ones or family members. Under New Jersey’s Revised Uniform Anatomical Gift Act, the simple answer to that question is yes. It’s why when you get a NJ driving license, the State asks whether you want to be an organ donor. It is the simplest way to indicate to someone without putting in a will or health care directive that you want to gift your organs. Even while you are alive, you can donate parts of your body to whomever you want, and if you are incapacitated, you can authorize your health care representative to donate or not donate some or all of your organs. The law allows you this flexibility.
So who can receive a donated body part? If you are giving away your kidney to your best friend who needs the kidney, then that is an acceptable gift. A hospital or accredited medical school, dental school, college, or university, organ procurement organization, or an eye bank or tissue bank can also accept a gift. What the law does not allow you to gifting your organs to anybody. You can’t direct upon your death that your body parts get carved out of your body and given away to family members, unless that person is receiving that body part for transplant or therapy. But you can direct that if there is a medical need for organ donation, then priority be given to your blood relatives over strangers. The law also prioritizes giving away organs to those with a medical need over research and education purposes, i.e. giving your body “to science.”
While it is a difficult and often times uncomfortable conversation to have, you want to make sure your loved ones know your wishes for what you want done with your body, along with whether you want to be resuscitated or kept alive in a situation where you have a terminal condition. Our office can assist you with preparing these documents that will make dealing with the end of your life the smoothest and easiest time your family will have as they deal with the pain and emotions that come with making these tough medical decisions.
Contact Fredrick P. Niemann, Esq., an experienced NJ Health Care Directives and Living Will attorney, today toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Power of Attorney Lawyer