Elder Care and Your Health Care Directive and Living Will

Do You Need an Elder Care Lawyer to Help With an Advanced Health Care Directive or Living Will in New Jersey?

At Hanlon Niemann & Wright, Our Elder Care Lawyers Will Guide You Through the Entire Process of Creating an Advanced Health Care Directive and Living Will.  Please Contact Us Today.

Questions surrounding health care and end-of-life decision-making are sensitive and unsettling for many of us. Death and dying while healthy are often not part of our daily conversations.  When life-sustaining (or ending) decisions must be made, you may want to control how your life and health will be decided should death come sooner than anticipated. Controlling how and when you die may not be possible if you do not have a written health care directive and living will.

You Have the Legal Right to Control Your Life and Your Death

New Jersey law affirms the right of everyone to give instructions about his or her health care and end of life under the New Jersey Health Care Decisions Act. In fact, New Jersey has adopted a law on physician orders for life-sustaining treatment (POLST).  It is intended to help create a standardized form for persons of all ages who have a life expectancy of one year or less, have a diagnosed progressively degenerative condition, or wish to plan in advance in the event of a medical emergency.  The documents listed below are intended to honor an individual’s decisions while alive regarding their health care and end of life when death becomes near and the person is unable (for any reason) to participate in those decisions:

• “Living Will and Health Care Directive” Many people are familiar with the term “living will”.  It is used to address health care and end of life preferences, typically the wish to avoid being medically kept alive with “extraordinary” or “heroic” measures if death or a terminal condition is diagnosed.

• “Durable Power of Attorney for Health Care” A highly versatile and essential document, the durable power of attorney for health care is the predecessor to the Health Care Directive.  This document authorizes another person to make health care decisions for you if you are unable to communicate your decision when needed.

New Jersey law approves of and promotes the use of a comprehensive Advance Health Care Directive.  In your Health Care Directive, you can:

Appoint a Health Care Agent:  You may appoint someone you trust including your spouse or child, for example, to make health care decisions for you in the event you cannot do so yourself. This allows the person (called your “Agent”) to dictate to healthcare professionals those medical decisions you would likely direct if asked. It allows medical decisions to be made based on your then real-life condition, not on a purely pre-determined result. The agent you appoint should be familiar with your feelings about certain medical treatments and procedures and whether you would have consented or refused consent for an elective and/or life-sustaining procedure(s). Once you appoint an agent, a physician cannot be held liable for listening to their medical decisions related to you.

Health Care Instructions: In addition to the appointment of an agent, you may also give health care instructions. You may explain how you want to be treated, for example, if you are permanently incapacitated and/or imminently facing death and unable to make and/or communicate your decisions about suggested life-sustaining treatment.

Relationship with your Physician and Healthcare Representatives: It is important that you have a physician who understands and appreciates your wishes related to your healthcare decisions. You should discuss your feelings related to the use of life-sustaining procedures in the event you are terminally ill or irrevocably unconscious with your physician and healthcare representative. You should feel confident that your doctor and healthcare agent will respect your decisions in such an event. If you do not feel this way, you should consider a change to another physician or representative who you feel comfortable with.

“Form” Documents: There are many statutory forms out there that call themselves an “Advance Health Care Directive”. Most are very general, highly vague, and ambiguous.  Family members could easily disagree about the documents’ meaning. For end-of-life decisions likely to be needed when one is permanently incapacitated, you may find that many forms fail to include the specificity that may be necessary. The power to make life or death decisions is an important one and the delegation of decision making should be given only after obtaining sound advice, with full understanding, and with explicit instructions that reflect the signer’s wishes and accommodate any special needs. When feasible, it is recommended that you work with an Elder Law attorney and your physician who is knowledgeable about the important medical and legal issues involved in preparing your Advance Health Care Directive and Living Will.

Every Person Should Have an Advanced Healthcare Directive and Living Will in New Jersey

Final Thoughts: A properly drafted Advance Health Care Directive and Living Will satisfies the need for “surrogate” decision-making should incapacity strike. It can avoid a possible court-ordered guardianship. Guardianship can cost up to $8,000.00+ when all is said and done.  Instead, each of us can choose the person who will act on our behalf if a medical emergency or major health care decision needs to be made. An Advance Health Care Directive, if properly drafted, can be one of the least expensive forms of insurance one can buy. Even more important than documents that specify how we want our property disposed of upon death, the Advance Health Care Directive can ensure for each of us personal dignity and integrity by detailing how decisions are to be made about our health care and end of life while we are still alive. Anyone who is age eighteen or over should consider signing such a document.

Actual Client Testimonial

I am writing this email to express my gratitude for the moral support you have given me at the time I needed the most.  By the time I reached the courthouse all my nervousness had gone, and I was very comfortable.  Thank you for the long ride.  I want to take this opportunity to thank everybody in your office who have been very kind and supportive.  Not worried about the outcome of the case, I thank GOD for placing me in the hands of a team of respectful excellent professionals who truly care. Thank you.

– Anju Aragam, Somerset County, NJ

Fredrick P. Niemann Esq.

If you have questions about a NJ Living Will and Advanced Health Care Directive, then please call Fredrick P. Niemann, Esq.

Toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.

He’s experienced and trusted by NJ families for over 40 years.




Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Elder Care Attorney