Advance Directive

Forms

• Proxy Directive (Durable Power of Attorney for Health Care) [pdf 15k]
• Instructive Directive (Living Will) [pdf 28k]

Developed by the New Jersey Commission on Legal and Ethical Problems in the Delivery of Health Care

Frequently Asked Questions

1. Can my healthcare representative make decisions for me if I am still able to make my own decisions?
   Answer: No, your healthcare representative can only make decisions for you if your physician has evaluated you and determined that you are unable to understand your diagnosis, treatment options or the possible benefits and harms of the treatment options.
2. Can having an advance directive affect my life insurance, health insurance or the benefits I receive from a governmental benefits program?
   Answer: No.
3. Can my life insurance company, health insurance company, physician, hospital, nursing home or any other healthcare facility require me to have an advance directive?
   Answer: No.
4. Does New Jersey recognize an advance directive that is valid in another state?
   Answer: Yes.
5. What is the definition of "life-sustaining treatment"?
   Answer: Life sustaining treatment is any medical device or procedure that increases your life expectancy by restoring or taking over a vital bodily function. The medical device or procedure can be a drug, ventilator (breathing machine), surgery, therapy or artificially provided fluids and nutrition.
6. What is the definition of “permanently unconscious"?
   Answer: Permanently unconscious means you have permanently lost the ability to interact with your environment and are completely unaware of your surroundings.
7. What is the definition of "terminal condition"?
   Answer: Terminal condition means the final stage of a fatal illness, disease or condition. To be in a terminal condition you do not have to be diagnosed as having less than a certain amount of time to live (e.g., six months or less).
8. What happens if I regain the ability to make my own decisions?
   Answer: In that case, your physician must obtain your consent for all treatment. Once you have the ability to make healthcare decisions your healthcare representative will no longer have the authority to make decisions for you.
9. Who should have a copy of my advance directive?
   Answer: You should give a copy to your primary healthcare representative, alternate healthcare representative(s), family members and physicians. If you are treated at a hospital or enter a nursing home you should also provide a copy when you are admitted.

1. Do I need a lawyer to complete an advance directive?
   Answer: No, you can complete an advance directive on your own.

2. Does my advance directive have to be notarized?
   Answer: No.

3. Do I need a witness when I sign my advance directive?
   Answer: You can choose to get your advance directive notarized, in which case you don't need additional witnesses. Or you can choose to sign and date your advance directive in front of two adult witnesses who must also sign and date the document.

4. What does it mean for someone to sign my advance directive as a witness?
   Answer: As a witness the person is stating that you voluntarily signed your advance directive.

5. Is there anyone who cannot sign my advance directive as a witness?
   Answer: Yes, the person who you appoint as your healthcare representative cannot be a witness.

6. Can I change my advance directive?
   Answer: Yes, you can change your advance directive any time you want by completing a new one. You need to sign and date your new advance directive and have two witnesses sign and date it.

7. Can I cancel my advance directive?
   Answer: Yes, you can cancel your advance directive any time you want. To cancel it you need to tell your physician, family, healthcare representative, nurse, social worker or a reliable witness that you want to cancel your advance directive. You can tell them verbally or send them a letter.

1. Can I have an instruction directive without having a proxy directive?
   Answer: Yes.
2. In what circumstance can I have life-sustaining treatment withheld or withdrawn?
   Answer: Your instruction directive can state you want life-sustaining treatment withheld or withdrawn in any of the following situations: 1) you are permanently unconscious, 2) you are in a terminal condition, 3) the life-sustaining treatment would likely only prolong an imminent death, 4) the life-sustaining treatment would likely be ineffective or 5) you have a serious irreversible condition and the life-sustaining treatment would likely be more harmful than beneficial.
3. Why is it important to have an instruction directive?
   Answer: You may become unable to make your own healthcare decisions because of a serious injury, illness or disease. By having an instruction directive your family and physician will know the situations in which you would want or not want to have life-sustaining treatment. And by including a statement about your beliefs, values and general preferences for care and treatment, your physician and family will know what you would want in situations that are not specifically covered by your instruction directive. An instruction directive will also prevent conflicts among your family, physician or other healthcare providers that can occur when a patient's treatment preferences are unknown.

1. Can my healthcare representative make decisions for me if I am still able to make my own decisions?
   Answer: No, your healthcare representative can only make decisions for you if your physician has evaluated you and determined that you are unable to understand your diagnosis, treatment options or the possible benefits and harms of the treatment options.
2. Can I have a proxy directive without having an instruction directive?
   Answer: Yes.
3. What authority does my healthcare representative have to make decisions for me?
   Answer: Except for any restrictions you have placed on their authority, your healthcare representative has the right to make all healthcare decisions for you, including the right to refuse medical treatment. They also have the right to review your medical records and receive from your physician all information about your condition, prognosis and treatment options as is necessary for them to make an informed decision.
4. Who can I appoint as my healthcare representative?
   Answer: You can appoint your spouse/domestic partner, parent, adult child, family member, friend, religious/spiritual advisor or any other adult.
5. Are there any restrictions on who I can appoint as my healthcare representative?
   Answer: Yes, you cannot appoint the following individuals as your healthcare representative: 1) your attending physician or 2) the operator, administrator or employees of a healthcare institution in which you are a patient or resident, unless they are related to you. A physician who is an operator, administrator or employee of a healthcare institution in which you are a patient or resident can be your healthcare representative only if they are not your attending physician.
6. Can I appoint more than one person as my primary healthcare representative?
   Answer: No.
7. Can I appoint someone as an alternate healthcare representative in case my primary healthcare representative is unavailable, unable or unwilling to serve as my healthcare representative?
   Answer: Yes, you can appoint one or more individuals as an alternate healthcare representative listed in order of priority. In the event the primary healthcare representative becomes available they would take over for the alternate.
8. Can I put requirements on how my healthcare representative makes decisions?
   Answer: Yes, you can require your healthcare representative to consult with the alternate healthcare representatives, specific family members, friends or anyone else you want. You can also state specific criteria upon which your healthcare representative has to base their decisions.
9. Can I limit the decision-making authority of my healthcare representative?
   Answer: Yes, for example you can state that your healthcare representative cannot authorize life-sustaining treatment if it would conflict with the preferences you stated in your instruction directive.
10. Can my healthcare representative be required to pay for my medical treatment?
    Answer: No, your healthcare representative cannot be required by a physician, other healthcare provider or any healthcare facility to pay for your treatment, including treatment they have authorized.
11. Why is it important to have a proxy directive?
    Answer: You may become unable to make your own healthcare decisions because of a serious injury, illness or disease. If you cannot make your own healthcare decisions someone will have to make them for you and without a proxy directive your physician will not know who you want that person to be. Having a proxy directive will help ensure your preferences are respected because only the person you have appointed will be able to make healthcare decisions on your behalf. Also, having a proxy directive will help prevent conflicts among your family members who may disagree on who should have the authority to make these decisions. Even if you have an instruction directive, it is important to have a proxy directive because there are many circumstances in which treatment decisions will have to be made that are not covered by your instruction directive.
12. Is my physician required to get consent from my healthcare representative for treatment?
    Answer: Yes, your physician is required to obtain informed consent for your treatment (except in emergencies), and must respect their decisions just as if the decisions were coming directly from you.
13. Who should I appoint as my healthcare representative?
    Answer: You should choose someone who knows your values, beliefs and preferences well enough to know what treatment decisions you would want them to make for various medical conditions. The person should be someone with good judgment and who will be a strong advocate on your behalf. They should also be someone you believe will respect your wishes even if they disagree with them, especially when it comes to your preferences about the use of life-sustaining treatment.