Health Care Directive
What is a health care directive and why should I have one?
New Jersey recognizes the fundamental right of competent adults to make voluntary, informed choices to accept or reject medical or surgical treatment and to choose from among alternative courses of treatment.
Where a patient loses decision-making capacity and can no longer participate actively in making his/her own health care decisions the law provides a method by which one can plan ahead. The method is called an advance directive for health care. This document permits a person to make certain choices as to treatment or non-treatment as well as to the designate another to make medical decisions for that person.
It is generally a good idea for everyone to have a health care directive. As soon as a child turns 18, parents legally lose decision making capacity. Parents should have their “adult” child execute a health care directive naming them as their agent.
When and how do I have a health care directive prepared?
A person can sign a health care directive at anytime provided he/she is competent to do so. The directive, a written document, must be signed and dated in front of an attorney or notary public or 2 witnesses who affirm that the declarant (person making the directive) is of sound mind and not subject to undue influence. The directive can be supplemented with a video or audio tape recording.
When does the health care directive become effective?
When the document is given to a physician or health care institution and it is determined that the patient lacks capacity to make a particular health care decision for him/herself.
What can I place in a health care directive?
You may appoint another person (health care representative or agent) to make medical decisions for you. This is called a proxy directive. You may direct the agent to consult with others, such a family and friends, before making medical decisions.
You may also sign a document which states your general philosophy and objectives or wishes regarding treatment. You may provide specific instruction as to the types of treatment or care to be provided or withheld. This is known as an instruction directive (most commonly referred to as a living will). For example, you may include instructions for providing a DNR (“Do Not Resuscitate”) order. That order must then be reflected in your hospital records.
A third type of directive is simply a combination of the first two. You may sign a document which designates an agent and which contains specific instructions concerning treatment.
Must a hospital or physician honor a health care directive?
The law permits private, religiously affiliated health care institutions to develop policies and practices defining when they will decline to participate in withholding measures to sustain life. This policy must, however, be written and must be given to patients and their families. It is a good practice to discuss with your regular physicians whether they have an objection to honoring your advance directive. A call to the local hospital where you are most likely to be admitted to find out whether they have a particular policy or practice with regard to advance directives is a good idea as well.
What should I do next?
Many hospitals have health care directive forms that patients may complete. These forms are generic in nature and may or may not be suitable for you. You can also consult a special needs planning or elder law attorney, depending on your situation, who can tailor an advance directive to your particular wants and needs. For information or to schedule an appointment contact us by e-mail at contact@hauptmanlaw.com or by telephone (973) 994-2287.