Mutual Wills or Last Will and Testaments for Man and Woman living together, not Married with Minor Children
Note: This summary is not intended
to be an all inclusive discussion of the law of wills in New Jersey, but
does contain basic and other information. This summary does not include
a discussion of hand written wills.
STATUTORY REFERENCE
ALL REFERENCES ARE TO THE NEW JERSEY PERMANENT STATUTES
ADVANCE HEALTH CARE DIRECTIVE
(26:2H-53, et seq. - New Jersey Advance Directives for Health Care Act)
Definitions
An advance directive for health care or advance directive is a writing executed in accordance with the statutory requirements. An advance directive may include a proxy directive or an instruction directive, or both.
A declarant is a competent adult who executes an advance directive.
A do not resuscitate order is a physician's written order not to attempt cardiopulmonary resuscitation in the event the patient suffers a cardiac or respiratory arrest.
A health care decision is a decision to accept or to refuse any treatment, service or procedure used to diagnose, treat or care for a patient's physical or mental condition, including life sustaining treatment. Health care decision also means a decision to accept or to refuse the services of a particular physician, nurse, other health care professional or health care institution, including a decision to accept or to refuse a transfer of care.
A health care representative is the individual designated by a declarant pursuant to the proxy directive part of an advance directive for the purpose of making health care decisions on the declarant's behalf, and includes an individual designated as an alternate health care representative who is acting as the declarant's health care representative in accordance with the terms and order of priority stated in an advance directive.
An instruction directive is a writing which provides instructions and direction regarding the declarant's wishes for health care in the event that the declarant subsequently lacks decision making capacity.
Life sustaining treatment is the use of any medical device or procedure, artificially provided fluids and nutrition, drugs, surgery or therapy that uses mechanical or other artificial means to sustain, restore or supplant a vital bodily function, and thereby increase the expected life span of a patient.
A proxy directive is a writing which designates a health care representative in the event the declarant subsequently lacks decision making capacity.
A terminal condition is the terminal stage of an irreversibly fatal illness, disease or condition. A determination of a specific life expectancy is not required as a precondition for a diagnosis of a terminal condition, but a prognosis of a life expectancy of six months or less, with or without the provision of life sustaining treatment, based upon reasonable medical certainty, is deemed to constitute a terminal condition.
Execution of Directive
A declarant may execute an advance directive for health care at any time.
An advance directive must be signed and dated by, or at the direction of, the declarant in the presence of two subscribing adult witnesses. The witnesses must attest that the declarant is of sound mind and free of duress and undue influence.
In the alternative, an advance directive may be signed and dated by, or at the direction of, the declarant and be acknowledged by the declarant before a notary public, attorney at law, or other person authorized to administer oaths.
A designated health care representative cannot act as a witness to the execution of an advance directive.
A female declarant may include in an advance directive executed by her, information as to what effect the advance directive shall have if she is pregnant.
An advance directive may be supplemented by a video or audio tape recording.
Reaffirmation, Modification, and Revocation of Directive
A declarant may reaffirm or modify either a proxy directive, or an instruction directive, or both. The reaffirmation or modification shall be made in accordance with the requirements for execution of an advance directive.
A declarant may revoke an advance directive, including a proxy directive, or an instruction directive, or both, by:
Notification, orally or in writing, to the health care representative, physician, nurse or other health care professional, or other reliable witness, or by any other act evidencing an intent to revoke the document; or
Execution of a subsequent proxy directive or instruction directive, or both.
The designation of the declarant's spouse as health care representative is automatically revoked upon divorce or legal separation unless the advance directive specifies otherwise.
An incompetent patient may suspend an advance directive, including a proxy directive, an instruction directive, or both, by any of the means set out above. Too, an incompetent patient who has suspended an advance directive may reinstate that advance directive by oral or written notification to the health care representative, physician, nurse or other health care professional of an intent to reinstate the advance directive.
Reaffirmation, modification, revocation or suspension of an advance directive is effective upon communication to any person capable of transmitting the information including the health care representative, the attending physician, nurse or other health care professional responsible for the patient's care.
Who May Be A Health Care Representative
A declarant may designate a competent adult to act as his health care representative.
A competent adult, includes, but is not limited to, a declarant's spouse, adult child, parent or other family member, friend, religious or spiritual advisor, or other person of the declarant's choosing.
An operator, administrator or employee of a health care institution in which the declarant is a patient or resident MAY NOT serve as a declarant's health care representative unless that person is related to the declarant by blood, marriage or adoption.
A declarant may designate one or more alternate health care representatives, listed in order of priority. In the event the primary designee is unavailable, unable or unwilling to serve as health care representative, or is disqualified from such service pursuant to this section or any other law, the next designated alternate shall serve as health care representative. In the event the primary designee subsequently becomes available and able to serve as health care representative, the primary designee may, insofar as then practicable, serve as health care representative.
A declarant may direct the health care representative to consult with specified individuals, including alternate designees, family members and friends, in the course of the decision making process.
A declarant must state any limitations placed upon the authority of the health care representative including any limitations which may be applicable if the declarant is pregnant.
Instruction Directive
A declarant may execute an instruction directive stating the declarant's general treatment philosophy and objectives and/or the declarant's specific wishes regarding the provision, withholding or withdrawal of any form of health care, including life sustaining treatment; or both. An instruction directive may, but need not, be executed contemporaneously with, or be attached to, a proxy directive.
