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Thursday, March 31, 2016

Agreement to not change Will valid IN THE MATTER OF THE ESTATE OF JEAN M. O’MEALIA

Agreement to not change Will valid
DOCKET No. BER-P-477-14 
Argued: February 23, 2016 
Decided: February 24, 2016 
Honorable Robert P. Contillo, P.J.Ch. 


This matter was tried by the court sitting without a jury on Tuesday, February 23, 2016. 

Decedent Jean M. O’Mealia (“Jean” or “Decedent”) died on April 21, 2014. She was predeceased by her husband, William Francis Xavier O’Mealia (“Francis”), who died on July 13, 2001. The couple had been married for thirty (30) years. It was the second marriage for both. They had no children together. Each had children from a prior marriage. 
Jean’s Last Will and Testament of October 4, 2007 was admitted to probate on June 11, 2014 (J-7). Pursuant to the terms of that Will, Jean’s daughter Barbara A. Cooke received Letters Testamentary on June 11, 2014. 
Petitioner Francis X. O’Mealia (“Frank”) is the son of Francis by a prior marriage. Francis also had a daughter by his prior marriage, Patricia Opfer. Francis had two grandchildren by Patricia — Donna and Laurie. 2 

Jean had four (4) children by her prior marriage: Barbara A. Cooke, Kathleen Wirt, Patricia Besserer and Frank Lynch. 
At the time of her death, Jean owned a home at 214 Longview Avenue, Hasbrouck Heights, New Jersey, titled solely in her name. The property had been conveyed to Jean by William F. X. O’Mealia and Jean M. O’Mealia by deed dated January 20, 1999, recorded January 29, 1999 (J-1). Francis and Jean had acquired the property from a third-party by deed dated February 26, 1990, using the proceeds of sale of their home in Jersey City. 
Pursuant to the terms of her Will of October 4, 2007, Jean left 30% of her residuary estate to her daughter Barbara A. Cooke, 30% to her daughter Kathleen Wirt, 30% to her daughter Patricia Besserer, and 10% to her son Frank Lyndon. 
Jean had executed a prior Will, on April 29, 1999. Neither the original nor any copy has been found. The court received no evidence as to the content of that lost or destroyed instrument. We know it existed because it is referenced in a codicil signed by Jean on October 6, 2000 (J-4). 
In that Codicil, Jean granted her husband a life estate in premises now titled in her name, being the martial home at 214 Longview Avenue, Hasbrouck Heights, New Jersey, and provided that, upon his death, the property was to be sold and the net proceeds given as follows: (a) one-half to her four (4) children and (b) one-half to her husband’s two children and two grandchildren. The Codicil was prepared and notarized by attorney William R. Postman, Jr. On that same date, Jean executed an Affidavit and Agreement, also prepared by and notarized by Mr. Postman. It provides as follows: 
“1. I am the present owner of the premises commonly known as 214 Longview Avenue, Hasbrouck Heights, New Jersey. 
2. I agree, that, in the event my husband, William Francis X. O’Mealia shall predecease me, I will not change my Last Will and Testament to remove Patricia Opfer, Francis X. O’Mealia, Donna Wright and Laurie Patti, my husband’s children and grandchildren, as beneficiaries of one half of the net proceeds from the sale of the above premises.” 
On December 19, 2014, Francis X. O’Mealia (“Frank”), the son of William Francis Xavier O’Mealia (“Francis”), filed a Verified Complaint and Order to Show Cause seeking to set aside Jean M. O’Mealia’s Last Will and Testament of October 4, 2007, to remove Barbara A. Cooke as Executrix, and to have admitted to probate Jean’s lost or destroyed Will of August 29, 3 

1999 and the Codicil of October 6, 2000, based upon the Affidavit and Agreement Jean signed on October 6, 2000, agreeing to divide the net proceeds of the Hasbrouck Heights property 50/50 between (a) her children and (b) the children (and grandchildren) of her husband. 
On the return date of the Order to Show Cause the court (Hon. Peter E. Doyne, A.J.S.C., now retired), determined that the matter was contested. The parties engaged in discovery. Unable to resolve their differences, the matter came on for trial on February 23, 2016. Christopher Leyden, Esq. presented the case on behalf of Petitioner Francis (“Frank”) X. O’Mealia. Michael I. Lubin, Esq. presented the case on behalf of the Executrix Barbara A. Cooke. 
The court heard from the following trial witnesses: 
1. Patricia Opfer, daughter of Francis; 
2. Dorothy Enright, secretarial assistant to attorney William R. Postman, Jr.; 
3. Jarett Cooke, son of Executrix Barbara Cooke and grandson of decedent Jean M. O’Mealia. 
4. William R. Postman, Jr., Esq.; 
5. Ron Cooke, husband of Executrix Barbara Cooke. 
Several exhibits were received into evidence, all by stipulation. Following closing argument, the court reserved decision. 

The within matter is governed by N.J.S.A. 3B:1-4, entitled “Contractual arrangements relating to death”, which provides in total as follows: 
A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed after September 1, 1978, can be established only by (1) provisions of a will stating material provisions of the contract; (2) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract; or (3) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills. 
It is the contention of Frank O’Mealia, son of Francis, that Francis and Jean O’Mealia entered into an enforceable contract whereby Jean agreed not to change her Last Will and Testament to remove Patricia Opfer, Frank, Donna Wright and Laurie Patti, being the children and grandchildren of Francis, as beneficiaries of one-half of the net proceeds from the eventual sale of the marital home in Hasbrouck Heights, New Jersey. 4 

Frank contends that this contract is memorialized in a certain October 6, 2000 “Affidavit and Agreement”, prepared and notarized by attorney Postman, and signed by Jean, in which Jean “agreed” to exactly that: 
“1. I am the present owner of the premises commonly known as 214 Longview Avenue, Hasbrouck Heights, New Jersey. 
2. I agree, that, in the event my husband, William Francis X. O’Mealia shall predecease me, I will not change my Last Will and Testament to remove Patricia Opfer, Francis X. O’Mealia, Donna Wright and Laurie Patti, my husband’s children and grandchildren, as beneficiaries of one half of the net proceeds from the sale of the above premises”. 
That same day (October 6, 2000), Jean executed a codicil to her Will of April 29, 1999, which document was also prepared and notarized by attorney Postman, in which she amended Article II of that Will to provide as follows: 
I direct that William Francis X. O’Mealia, my husband, may continue to reside in the house located at 214 Longview Avenue, Hasbrouck Heights, New Jersey 07604, for the remainder of his life, or until he is unable to reside there, or until he chooses to vacate the house, whichever event shall occur first. After he permanently vacates that house as stated above, or for any other reasons, I direct my Executor(s) to sell the house located at 214 Longview Avenue, Hasbrouck Heights, New Jersey 07604, at its fair market value. A purchaser of such property shall not be required to see to the application of the purchase money. After deducting from the sales price all appropriate commissions, taxes and expenses, I give one-half to the net proceeds from the sale of the house, to PATRICIA BESSERER, KATHLEEN WIRT, FRANCK LYNCH and BARBARA COOKE, my children, in equal shares. I give one half of the net proceeds from the sale of the house, to PATRICIA OPFER and FRANCIS O’MEALIA, my husband’s children, DONNA WRIGHT and LAURIE PATTI, my husband’s granddaughters, in equal shares. 
The underlying Will to which this Codicil relates is dated April 29, 1999. The trial evidence establishes that it too was prepared by attorney Postman. No original or copy has been produced, and no evidence of the contents of that Will was produced. 
By deed dated January 20, 1999, recorded January 29, 1999, prepared by an attorney named Anthony H. Guerino, Esq., Francis and Jean conveyed to Jean all of Francis’ right title 5 

and interest to the jointly owned marital home in Hasbrouck Heights (J-1). The consideration as recited in that deed is “$1.00”. That deed was forwarded on to Francis by Mr. Guerino’s paralegal under cover of a letter dated April 23, 1999 (J-2). In that letter, Mr. Guerino’s paralegal also advises Francis that “… the Bankruptcy Petition was filed and we are awaiting a Court Date. I will contact you upon receipt of same”. 
The trial record reveals that Francis had incurred substantial credit card debt; that he consulted with attorney Guerino at Mr. Guerino’s Newark office; that Mr. Guerino prepared, notarized and recorded the deed by which Jean and Francis transferred all interest in the jointly-held marital property into Jean (J-1); and that Guerino filed a bankruptcy petition on behalf of Francis. The court has not been provided with the bankruptcy petition and received no evidence as to the resolution of that filing. 
It is noted that the April 23, 1999 cover letter to Guerino’s office to Francis predates by six (6) days the missing Will prepared by Postman dated April 29, 1999, referenced in the Codicil of October 6, 2000. 
The core question posed by the trial is whether Francis’ son Frank has proven the existence of an enforceable agreement by Jean not to change her testamentary provision which provides for the post-death division of the net proceeds of sale of the marital home 50/50 between her heirs and those of Francis. 
Since 1978, a contract to make a will or not to revoke a will or a devise, can only be established in one of three ways. N.J.S.A. 3B:1-4. The first of those ways is by “provision of a will stating material provisions of the contract”. The missing Will of April 29, 1999 has not been shown to have contained any reference to any contract between Francis and Jean. It is Petitioner’s burden to prove otherwise and that burden has not been met. The 2001 instrument which Jean may or may not have executed contains no reference to any such contract between Francis and Jean (J-6).1 The October 6, 2000 Codicil (J-4) to the missing Will of April 29, 1999 likewise contains no reference to any contract between Francis and Jean. It does embody the testamentary provision by Jean to divide the net proceeds of the marital home 50/50 between her heirs and those of Francis. However, reference to the existence of a contract between Francis and Jean in this regard (50/50) is not to be found in the Codicil. The fact that the provision said 
1 There is reason to believe that this 2001 unsigned Will is a draft as it was found only in scrivener Postman’s computer and has an error in the bequests, which total 110% rather than 100%.

to be contractually-mandated is located in the Codicil (e.g., “I leave X to A and B, 50/50”) provides no basis for supposing that that provision is somehow mandated by a contract, as opposed to being entirely gratuitous, hence revocable. Said another way, the statute can not be read as providing that a bequest in a will is somehow in and of itself evidential of that bequest being mandated by contract, as opposed to being entirely gratuitous and revocable. 
The second of the only three ways by which to establish a contract to make a will or devise, or not to revoke a will or devise, is by “an express reference in a will to a contract and extrinsic evidence proving the terms of the contract”. Here, there is no express reference to a contract in any of the wills or in the codicil attributable to Jean O’Mealia.
2 The court has been provided no evidence as to any last will testament or codicil ever executed at any time by Francis O’Mealia. 
The third and final of the three ways by which to establish the existence of a contract to make a will or devise, or not to revoke a will or devise, is by “a writing signed by the decedent evidencing the contract”. Here, we have a writing signed by decedent — Jean — notarized by its preparer, her attorney, Postman, executed by Jean on the same day she executed a codicil embodying precisely what she agreed she would not thereafter change. Jean created a testamentary provision dividing the net proceeds of the home 50/50 between her heirs and those of Francis and, on the same date, signed a sworn statement, notarized by her attorney, agreeing not to revoke that 50/50 division. 
Therefore, I find there exists a writing, signed by the decedent — Jean — evidencing an agreement with Francis not to revoke the 50/50 provision in the event her terminally ill husband were to predecease her. Francis died on July 13, 2001, some nine (9) months after Jean signed the Codicil and the agreement not to revoke the terms embodied in the codicil. 
It is argued that Francis did not sign the “Affidavit and Agreement” and that there is no competent evidence he even entered into any such agreement or contract with Jean. 
The statute does not require that the contract or agreement be signed by Jean and Francis. It is sufficient that it is “signed by the decedent”, i.e., Jean. N.J.S.A. 3B:1-4(3). The attorney who prepared the agreement and the Codicil was Jean’s estate attorney, but he represented both Jean and Francis in connection with the sale of their Jersey City home and simultaneous purchase of their Hasbrouck Heights home in 1990. It was conceded at trial that Francis was aware of the Codicil and agreement, and trial testimony establishes that he gave a copy of each to 7 

his daughter the week before he died, telling her “Don’t lose it”. There is no logical reason to assume that Francis disagreed with Jean’s promise to protect Francis’ heirs in the very likely event he were to predecease her. The only logical conclusion is that Jean and Francis so agreed, and that Frank understood that his side of the family would get their fair, equal share of the net proceeds of the sale of the marital home. 
In summary, I find that there was an agreement between Jean and Francis that Jean would create a testamentary plan to provide for Francis’ family to get one-half of the net proceeds of the marital home when she died, should he have predeceased her and, further, Jean agreed that she would not change the plan to disinherit Francis’ family from this one-half interest. 
The statute does not require these proofs to be by clear and convincing evidence. The three (3) cases relied upon by Jean’s heirs all predate the statute and relate to claims of oral promises or oral contracts to make a will or make a specific bequest. 
The Executrix cites to Young v. Sabol 4 N.J. 309 (1950) for the proposition that Petitioner’s proofs must be clear and convincing. But Young involved a purported oral agreement to make irrevocable wills. The higher standard is deemed appropriate because of the opportunity for perpetration of fraud attendant to supposed oral agreements to make irrevocable wills. Vreeland v.Vreeland, 53 N.J.Eq. 387 (1895). Howells v. Martin, 101, N.J.Eq. 275 (E.&A.) 1927) is to the same effect, as is Sommers v. Zuck, 139 N.J.Eq. 245 (Ch. 1947). These precedents are of limited value where, as here, we are dealing with a subsequently enacted statute which specifies what must be shown to establish such an agreement, where the bequest is in writing and the agreement not to alter the bequest is also in writing, and where there is no hint of fraud or undue influence or any circumstance of even a suspicious nature. 
The legislative history of the statute under consideration gives insight into the difficulties the act was designed to remedy. The following is quoted in Matter of Estate of Cosman, 193 N.J.Super. 664, 670 (App. Div. 1984): 
“Although our search for legislative history developed no expression of legislative purpose, the statement accompanying the bill declares it to be “one of a series of bills adopted from the proposed Uniform Probate Code ….”. The section in question is a duplicate of section 2-701 of the Uniform Code. The comment to section 2-701 delineates the legislative intent: 
It is the purpose of this section to tighten the methods by which contracts concerning succession may be proved. Oral contracts not to revoke wills have given rise to much litigation in a number of states; and in many states 8 

if two persons execute a single document as their joint will, this gives rise to a presumption that the parties had contracted not to revoke the will except by consent of both. 
This section requires that either the will must set forth the material provisions of the contract, or the will must make express reference to the contract and extrinsic evidence prove the terms of the contract, or there must be a separate writing signed by the decedent evidencing the contract. Oral testimony regarding the contract is permitted if the will makes reference to the contract, but this provision of the statute is not intended to affect normal rules regarding admissibility of evidence. [8 U.L.A. 364 (1972)]. 
I find the agreement has been established in a manner statutorily sanctioned, by a preponderance of evidence. And, since there really is no other way to understand the Agreement and the Codicil, I find that Petitioner has established the existence of an agreement by Jean and Francis by which Jean would not alter the 50/50 testamentary disposition, by clear and convincing evidence, were that the standard. Here, we have an unambiguous written bequest and an unambiguous written confirmation by Jean that she would not revoke that bequest. That is sufficient to establish the existence of an agreement not to revoke a bequest per N.J.S.A. 3B:1-4(3). 
The remaining question is whether any consideration exists to support the agreement. A will is revocable at any time by the testator; a testamentary disposition is not enforceable until after the testator’s death. Michaels v. Donato, 4 N.J.Super. 570, 67 A.2d 911, 913 (Ch. Div. 1949). Moreover, a will may be altered unilaterally by the testator in an instrument executed in accordance with the statutory formalities for executing wills. N.J.S.A. 3B:3-16; see N.J.S.A. 3B:3-2. In contrast, a contract creates a present, enforceable, and binding right over which the promisor has no control without the consent of the promisee. Michaels v. Donato, 4 N.J.Super. 570, 67 A.2d 911, 913 (Ch. Div. 1949). The execution of the contract and the performance of the duties on the part of the promisee create an affirmative obligation on the testator to make a testamentary disposition in conformity with the terms of the contract. Tooker v. Vreeland, 92 N.J. Eq. 340, 112 A.655, 668 (Sup. Ct. 1921), aff’d, 93 N.J. Eq. 224, 115 A. 255 (1921). A violation of this obligation is a breach of contract and a fraud upon which equity may afford relief. Drewen v. Bank of Manhattan Co. of the City of N.Y., 31 N.J. 110, 155 A.2d 529, 533 (1959). 9 

If an instrument is a will, it is revoked by the testator’s execution of a new will that revokes former wills expressly or by inconsistency. N.J.S.A. 3B:3-13(a). If the instrument is held to be a contract, it remains specifically enforceable, regardless of any future revocation of a will. See, Sellyei v. Lecso, 28 N.J.Super. 593, 101 A.2d 26, 29 (Ch. Div. 1953). 
A will is inoperative or ambulatory until the death of the testator, at which time it creates a property interest in its beneficiaries. A contract immediately creates a property interest in its subject. A will is gratuitous; a contract is made in consideration of something to be paid or done by or on behalf of the other party, so that the obligation to perform and the right to require performance are reciprocal. Michaels v. Donato, 4 N.J.Super. 570, 67 A.2d 911, 913 (Ch. Div. 1949). 
Here, the court finds good and sufficient consideration to support Jean’s agreement not to change her testamentary plan to give Francis’ heirs (his children and grandchildren) one-half of the net proceeds of the sale of the marital home. 
First, the conveyance of Francis’ interest and Jean’s corresponding agreement to preserve half the home proceeds for Francis’ heirs was not some favor done by Jean to help out a financially beleagued Francis. This was a determination implemented jointly by a fully intact married couple seeking to deal with excessive debt, while also attempting to protect the marital home — their principal asset — and, crucially, to protect and preserve a share of it for the ailing Francis’ side of the family, notwithstanding the conveyance of Jean and Francis’ title to Jean. The home was a joint, marital asset acquired by the couple through their joint efforts. It was as much Francis’ as it was Jean’s. The couple evidently so viewed it, as they implemented a series of transactions designed to protect the home, protect Francis’ heirs and, should Francis have survived Jean, provide some protection for Jean’s heirs. It is contended that the arrangement was in effect a fraudulent conveyance, designed to defraud creditors. I have been provided no information as to what happened to the credit card debt as a result of the bankruptcy filing. But however one characterizes the series of transactions these were joint decisions, jointly arrived at by a couple in a marriage of decades duration. Francis’ heirs can not fairly be estopped from seeking to enforce the agreement based on speculation on the impact of the couple’s actions on the rights of unknown creditors. 
The court finds that Jean and Francis conveyed Francis’ interest in the marital home to Jean because of Francis’ impending bankruptcy. Presumably, this was done to shield the home 10 

from credit card creditors. While husband and wife agreed to take this action, they also agreed at some point to assure Francis that his family would be protected in the very likely event he predeceased Jean. We know this agreement was implemented by the Codicil (J-4) and the Affidavit and Agreement (J-3). When the agreement may have been reached is not revealed in the record, but it is obviously related to the fact that Francis surrendered all right, title and interest to the marital property to Jean, thereby depriving his side of the family of any share of this joint asset in the likely event of his death prior to Jean’s death. Jean benefitted from the scenario as well because it assured her that her family would partake of a fair share of the house in the event, admittedly not very likely, that her ailing husband survived her. 
It is contended that the transfer of the home into Jean’s name only — on January 20, 1999 — is too attenuated in time from the agreement and Codicil of October 6, 2000, some eighteen (18) months later. The fact finder is not aided by any testimony or Francis or Jean, who are deceased. The scrivener of the deed of conveyance and Francis’ bankruptcy counsel (Mr. Guerino) did not testify. And Mr. Postman’s testimony at trial was unilluminating. He represented Francis and Jean in the sale of their Jersey City home, and in the purchase of their Hasbrouck Heights home, and represented Jean in connection with the preparation and execution of her lost/destroyed April 29, 1999 Will, and possibly as to a 2001 Will (J-6), and with respect to her codicil of October 6, 2000 (J-4) and her simultaneous agreement not to modify that codicil (J-3). He also prepared and supervised the execution of Jean’s final Will — October 4, 2007 — by which Jean revoked the Codicil she had agreed not to revoke. Attorney Postman could provide at trial no explanation or recollection of why Jean wanted the codicil in the first place, nor why she wanted to reduce to writing her agreement with her husband not to deprive her husband’s family of 50% of the net proceeds of sale of the marital home. Mr. Postman also had no recollection of any discussions with Jean when she subsequently had him prepare testamentary instruments directly contrary to the codicil and contrary to her written agreement not to change the codicil. Mr. Postman did not have any recollection of having understood — or Jean having understood — that he was preparing and she was signing testamentary instruments which violated the core term of the agreement she had made with her now-deceased husband. 
The court found Mr. Postman to be truthful in his failures to recall, and finds nothing nefarious in the lack of any contemporaneous notes or other documents that might illuminate Jean’s specific thinking. I do note that Mr. Postman is handling the underlying administration of 11 

the estate on behalf of Jean’s heirs, and so may be seen as aligned with their interests under Jean’s final Will of October 4, 2007. But the consideration that support’s Jean’s promise and binds the parties to the terms of her codicil of October 6, 2000 is the receipt by Jean of her husband’s interest in the marital home (but for a life estate, which he would of course have retained – in effect – had he stayed in title), which conveyance protected her heirs in the event she pre-deceased her husband. That is consideration. It is not contended that the consideration was inadequate; only that it was non-existent. 
Notwithstanding the lack of testimony from Francis or Jean or attorney Guerino, and the unilluminating testimony of attorney Postman, the court comes to the inevitable and logical conclusion, based on the totality of the evidence presented, that the property conveyance, Jean’s Codicil and the agreement not to change the Codicil’s core provision are all related and mutually dependent, and that Jean received consideration, i.e., value, for agreeing to the series of transactions. 

Accordingly, the court finds that the testamentary provision contained in the Codicil, which Jean agreed not to change, can not be effectively revoked, and the attempt to do so is a nullity. Francis’ heirs and Jean’s heirs will share the net proceeds of the sale 50/50, as Francis and Jean agreed. The expenses as set forth in D-1, including fees of administration, are accepted and shall be taken off the top. Both counsel may within ten (10) days submit a certification of services. If there is objection to same it shall be filed and served within ten (10) days. 

Friday, March 18, 2016

Legislation to implement Practitioner Orders for Life-Sustaining Treatment (POLST)

Legislation to implement Practitioner Orders for Life-Sustaining Treatment (POLST) was signed by Gov. Chris Christie in December 2011. POLST is intended to promote an adult’s right to self-deter- mination and autonomy with respect to goals of care, treatment preferences and choices, to clarify
treatment choices and goals and to reduce repetitive actions and inappropriate hospitalizations/transfers.
Completing a POLST form begins with a conversation between a physician/advance practice nurse and the individual, typically one with advanced, progressive chronic disease in the last months/years of life, to determine goals of care and treatment preferences in key areas of life-sustaining treatment, including resuscitation, artificial nutrition and hydration and hospitalization. These conversations can occur in any healthcare setting. The conversation should be guided by a healthcare professional with sufficient exper- tise to discuss the medical facts of the individual’s situation and the likely risks and benefits of various treat- ments. The N.J. POLST form is structured to help guide conversations that might otherwise be difficult or non-productive. It allows for a review and documentation of some key decisions in a standardized format, and encourages frequent review as the individual’s health situation evolves.
Preferences for care and treatment may have been documented in previous advance directives, living wills, or medical powers of attorney (POA), but none of those are a provider’s medical order. Completion of a POLST does not revoke those documents and those documents should be referenced when completing the POLST form. The POLST must be signed by the MD/APN and voluntarily by the individual with de- cision-making capacity or by the individual’s authorized agent in accordance with the individual’s known preferences or in the best interest of the individual. Completion of a POLST does not revoke documents such as advance directives, living wills, or medical powers of attorney; those documents compliment the POLST and all of those remain in effect documenting the individual’s preferences. The POLST overrules prior instructions only when they conflict directly. Completion of a POLST, however, does invalidate all previous POLST documents.
The N.J. form provides a section where the individual can indicate the only person(s) who can change a POLST form in the event the individual is incapacitated. POLST travels with the individual and must be honored in all settings, ie. hospital, clinic, ambulatory surgery center, long term care, rehabilitation facilities, long term acute care hospitals, assisted living, hospice, during transit by pre-hospital providers or home. The portability of the form allows seamless documentation of treatment goals and preferences and closes gaps as individuals transfer across healthcare settings. The form is a brightly colored green for easy recognition, but photocopies, faxes and electronic scans also are valid.
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The POLST Form
The POLST form serves to translate the individual’s treat- ment goals into a set of portable medical orders that must be honored in all settings. In a healthcare facility, the
form should be the first document in the clinical record and should be recognized as a set of medical orders implemented in the same manner as all other medical orders. In a non-institutional setting, the form should be placed in a location that is easily accessible and likely to be seen by first responders and EMS personnel.
In the absence of a POLST form or another state-specific med-
ical orders form, individuals will receive the routine emergency
medical care, including advanced cardiac life support, CPR, invasive airway management and defibril- lation. Therefore it is essential that, if an individual does not wish to undergo these interventions, the POLST form be readily available. The form is a brightly colored green for visibility and recognizability and should accompany the individual whenever he/she is transferred or discharged to a facility or care setting.

It should be noted that the use of the POLST form is entirely voluntary, is not required by law, and is ultimately the individual’s decision to complete or not. The form is most appropriate for individuals with life-limiting or terminal illnesses. To determine whether a POLST form should be encouraged, clinicians should ask themselves whether they would be surprised if the person died in the next three to five years because of a serious life-limiting illness. If they would not be surprised, then a POLST form is probably appropriate. A POLST form is designed to express the individual’s preferences for levels of treatment and other artificial life support and can indicate either full treatment including resuscitation attempts or can be used to limit those interventions that are not desired by the individual. POLST forms, therefore, are most useful for people who:
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  •  Are seriously ill with life-limiting advanced illness
  •  Have advanced frailty with significant weakness and difficulty with daily personal activities
  •  May lose the capacity to make their own healthcare decisions within the year
  •  Hold strong preferences about their end-of- life care
  •  Are chronically ill individuals who have fre- quent contact with the healthcare system
  •  Individuals who reside in long term care fa- cilities.
  •  Unlessitistheindividual’spreference,theuse of the POLST form to limit treatment is not appropriate for patients who are medically sta- ble or who have functionally disabling prob- lems but have many years of life expectancy.
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Emergency responders required to honor POLST
The New Jersey law regarding POLST requires that all healthcare providers, including pre-hospital providers such as first responders or EMS personnel, must follow the orders as delineated on the POLST form.
The Advance Directive
Advance directives are legally recognized documents that are designed to reflect an individ- ual’s medical goals and treatment preferences in the event that he/she is unable to give consent in the future. These are recommended for all capable adults, regardless of health
status, and allow individuals in New Jersey to:
  •  Designate a person (surrogate decision maker/proxy) and give that person the legal authority to make decisions on treatment issues for the individual if the individual is unable to make decisions for himself/herself on treatment issues
  •  Provide those responsible for the care of the individual with a statement of the individual’s medical treatment preferences. This usually entails written directions that, in advance, outline what medical treatments the individual wishes to accept or refuse and the circumstances in which the individual wants those directions implemented.
    Key Differences between the Advance Directive and POLST
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Advance Directive
Not a medical order; requires evaluation by a physician of the individual’s diagnosis/prognosis and preferences with regard to present condition. Usually treatments cannot be lim- ited in an emergency situation with only an Advance Directive. Therefore, unwanted treatments and interventions may be ap- plied.
Is a medical order that guides the care provided by all healthcare providers.
Helps people communicate treatment preferences in advance of a serious illness and designates a proxy to make decisions should the individual lose capacity to do so.
Reflects the individual’s goals of care and wishes around care near/at the end of life and trans- forms them into actionable orders that must be followed by all healthcare professionals.
Recommended for all adults with decision-making capacity.
Recommended for individuals with advanced illness, frailty or strong preferences about medical interventions in their current state of health.
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How the Advance Directive and POLST can Work Together
As long as individuals retain decision-making capacity, they can modify or void their POLST at any time to reflect any changing wishes regarding their goals of care or treatment preferences as the circumstances surrounding their illness changes. The orders on the form are still valid when
the individual loses capacity and unless the individual has designated a surrogate on the front of the form, no one can modify the POLST form other than the individual.
How the Out of Hospital DNR Form Works with POLST
Once a POLST document has been executed by the individual and his/her physician or advance practice nurse, the Out of Hospital (OOH) DNR Form can be destroyed. POLST replaces the OOH DNR since all healthcare providers, including pre-hospital providers like EMS personnel and first responders, must follow the orders on the POLST form.
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The Discussion with the Individual
Completing the POLST form should follow a thorough discussion with the individual/surrogate based on the individual’s medical treatment preferences at the time of discussion. The organiza- tion of the form is such that it may serve as a template or script for the discussion as it may occur
at the bedside, beginning with the person’s goals and ending with a recommendation regarding resuscita- tion. Attempts should be made to frame the Goals of Care question within the context of the individual’s prognosis, and make medical recommendations to help them achieve their treatment goal, whether they be full therapeutic efforts to sustain life or more palliation for comfort. The physician or advance practice nurse should avoid beginning the Goals of Care conversation with CPR status and should attempt to offer this as a recommendation based on realistic goals and the likelihood of surviving CPR.
This discussion must include the individual if he/she has capacity. For minors, the discussion must be with the parent(s) or legal guardian. Others who may be included, with the individual’s consent, are:
Court-appointed guardian or other legally appointed decision maker Spouse, civil union partner or children
NOTE: When filling out a POLST form, always specify who the “other” is and the relationship to the individual.
Determining a Surrogate
If the individual has decision-making capacity, he or she may appoint a healthcare representative/sur- rogate decision maker on the POLST form to make decisions in the event the individual later loses deci- sion-making capacity. If there is conflict between the individual named on this POLST form and another document, such as a previously executed POLST form or advance directive, confirm with the individual who the designated surrogate decision maker should be. If the individual does not have decision-making capacity upon the initial execution of a POLST form, the healthcare providers must rely on a surrogate decision maker, such as a healthcare representative named in an advance directive or other surrogate de- cision maker authorized by law, to complete the POLST form.
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APOLST form must be signed by a physician or advance practice nurse in order to be valid. The healthcare professional’s information should be filled out on the form and must also bear the professional’s signature. By signing the form, the healthcare professional assumes full respon-
sibility for the medical orders that are documented similar to any other medical order in the individual’s chart and acknowledges that these orders reflect the individual’s or the designated decision maker’s current wishes for treatment.
Also note that sometimes an individual is evaluated and has a POLST form completed by a physician or APN not on the medical staff of that particular facility; in this case, healthcare professionals are still required to honor the orders of the POLST form.
It is legally mandated for the POLST form to be voluntarily signed by the individual with decision-mak- ing capacity, or by the individual’s representative in accordance with the individual’s known preferences or in the best interest of the individual in order for the form to be valid in New Jersey. If they cannot sign, it should be so noted on the form.
Storing the POLST Form
The POLST form provides documentation of the individual’s preferences and provides medical orders accordingly. In healthcare facilities, POLST should be readily accessible in clinical records and in home settings, it should be in a highly visible location that EMS personnel and first responders are likely to see, such as attached to the kitchen refrigerator, by the telephone, by the individual’s bed or on the inside of the front door. Individuals should keep the original copy of the POLST form with them at all times.
Transferring an Individual with a POLST Form
For individuals in healthcare facilities, the original form should accompany them when transferred from one facility to another, as a copy of the form should be kept in the medical record. HIPAA enables the disclosure and transfer of POLST orders to other healthcare professionals, as necessary. A copy of the POLST form should be given to EMS personnel and ambulance staff before transferring the individual. It is important that they can access and review the form itself, therefore it should not be included in transfer documents in a sealed envelope.
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Dealing with Disputes Regarding a POLST Form
Disputes regarding existing treatment orders in a POLST form typically are based on who has deci- sion-making authority or what those decisions ought to be. This may occur when a family member requests treatment for the patient that conflicts with what is indicated on the POLST forms. In spite of this, the POLST form is legally binding for all providers and cannot be changed by anyone unless the individual has so designated on the front of the form.
Revising/Voiding a POLST Form
The healthcare professional responsible for the individual’s care should review the form with the individual and update the POLST orders as the individual’s medical conditions, goals and treat- ment preferences change.
POLST should be reviewed and updated periodically if the individual:
Is transferred to a different care setting
Experiences a significant change in health status Changes his or her treatment preferences
Changes his or her primary care provider.
Sometimes, however, the need to follow the POLST orders occurs before a revision and update of the POLST form is possible. In this scenario, POLST orders should still be followed by EMS personnel or other providers until a review is completed by the appropriate healthcare professional.
An individual with capacity or the individual’s representative who is designated by the individual or otherwise authorized under law to make healthcare decisions on behalf of the individual who lacks deci- sion-making capacity, may void the POLST form at any time and request different treatment. This can be done by:
  •  Drawing a line through sections A through F and writing “VOID” in large letters on a paper form
  •  If the POLST form is maintained via an electronic medical record kept by the facility, it must be
    voided in accordance with the institution’s procedures.
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Section-by-Section Review of POLST Form
The first section on side one of the POLST form is: A – Goals of Care
Side one of the POLST form also lists three different medical treatment sections:
B – Medical Interventions
C – Artificially Administered Fluids and Nutrition
D- Cardiopulmonary Resuscitation (CPR) and Airway Management

This page also contains two sections related to documentation and signatures:
E – Identification and authorization of a surrogate decision maker in the event that the individual loses decision-making capacity, and who is the only person who is able to modify or revoke the N.J. POLST orders in a consultation with the patient’s treatment physician or APN
F – Signature of the practitioner (MD/DO/APN) and of the patient or surrogate
Any of these sections, which constitute medical orders, that is not completed indicates that full treat- ment should be provided for that type of treatment until clarification is obtained.
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A – Goals of Care
While this section does not constitute a medical order, it prompts medical providers to have meaningful discus- sions with the individual around his/her future – using
questions like “what are your goals for the next month or year?” or
“what is meaningful in your life and how do you want to live it in the
months/years you have left?” Other questions might be “what is your
understanding now of where you are with your illness?” “how much
information about what may lie ahead with your illness do you want
to know” and “how much does your family know about your priori-
ties and wishes?” It is important to share information regarding the
prognosis in order to allow the individual to set realistic goals for care
to guide the completion of the remainder of the POLST form. Among these considerations are longevity and remission, quality of life, family events and performing daily activities.

B – Medical Interventions
These orders apply to an individual who has is breathing and/or has a pulse.
  •  Choose Full Treatment if all life-sustaining treatments are desired including use of intubation, ad- vanced airway intervention, mechanical ventilation, cardioversion, transfer to hospital and use of intensive care as indicated with no limitation of treatment.
  •  Choose Limited Treatment when the individual prefers to be hospitalized for medical treatment (such as antibiotics and IV fluids as indicated) if needed, but wishes to avoid invasive mechanical ventilation and ICU care. Some individuals may only want to be hospitalized if their comfort needs cannot be met in their current location. Either of these two options can be indicated in this section.
  •  ChooseSymptomTreatmentonlywhentheindividual’sgoalsaretomaximizecomfortandavoidhospi- talizations unless it is necessary to ensure that their comfort needs are met. The treatment plan is to re- lieve pain and suffering and maximize comfort by using any medication by any route, positioning, wound care or other measure such as oxygen, suctioning and manual treatment of any airway obstruction. Note that medication such as antibiotics may only be used to promote comfort. Individuals should only be transferred to a higher level of care if symptom management cannot be provided in the current setting.
  •  Additional Orders to clarify the individual’s preferences can be written: e.g. “ICU treatment for sepsis but no intubation/mechanical ventilation for respiratory failure.”
  •  Healthcare professionals should first administer the level of medical interventions ordered on the POLST form and then contact the physician/advanced practice nurse for further direction.
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C – Artificially Administered Fluids and Nutrition
These orders must account for the institution’s policies and the individual’s wishes regarding the use of ar- tificially administered nutrition and hydration for an individual who cannot orally intake food or fluids. Oral fluids and food must always be offered to the individual if medically feasible and desired.
D – Cardiopulmonary Resuscitation (CPR) and Airway Management
These orders apply only when the individual has no pulse and/or is not breathing. This section does not apply to any other medical circumstances. For example, this section does not apply to an individual in respiratory distress because he/she is still breathing. Similarly, this section does not apply to an individual who has an irregular pulse and low blood pressure because he/she has a pulse. For these situations, the first responder or healthcare provider should refer to section B and follow the indicated orders.
If the individual wants cardiopulmonary resuscitation (CPR) and CPR is ordered, then the “Attempt Resuscitation/CPR” box is checked. Full CPR measures should be carried out and 911 should be called. If the individual has indicated that he/she does not want CPR in the event of no pulse and/or not breathing, then the “Do Not Attempt Resuscitation/DNAR, Allow Natural Death” box is checked. CPR should not be performed and procedures for pronouncement of death should subsequently be followed.
Airway Management
These orders apply when the individual is in respiratory distress and has a pulse. In this scenario, an individual may wish to either be intubated, in which case artificial ventilation will be used as needed, or to not be intubated, in which case oxygen, manual treatment to relieve airway obstructions and medication for comfort will be used instead.
Note: some individuals with advanced illness might want all measures including intensive care treat- ment and temporary life support such as mechanical ventilation, but would not want to be resuscitated if these attempts fail and their heart stops. Thus, an individual can request DNAR in Section D and re- quest Full Treatment in Section B, selecting “Intubate” or “Do Not Intubate” in the Airway Management Section, depending on personal preference and goals of care.
E – Surrogate Designation
This section can only be completed by the covered individual and his/her physician or APN when the individual has decision-making capacity
When completing the form, the individual can indicate whether or not he/she wants to authorize a surrogate who can modify/revoke the POLST document. Only if so authorized in this section of the form, may changes be made to the POLST form by anyone other than the individual.
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F – Signatures
Upon completion of the orders, the physician (MD/DO) or APN must sign and date the POLST form in acknowledgement that the orders on the form are consistent with the individual/surro- gate preferences. POLST orders also should be signed by the individual/surrogate and it should
be indicated on the signature line if the individual/surrogate is unable to sign, declined to sign or gave verbal consent. Without an MD/DO/APN signature, POLST orders are not valid.
The boxes to be checked regarding organ and tissue donation are meant to ascertain if the individual has documented a decision on organ donation. The individual must understand that documenting an anatomical gift on the POLST form only records an existing gift. Unlike an advance directive or driver’s license registry, the POLST form cannot be used to make, or refuse to make, an anatomical gift, and it will not change the terms of an existing anatomical gift. If a gift has been made, the POLST form will not impede that gift. If the patient has not made an anatomical gift, his/her survivors will be asked to donate, if appropriate, regardless of what is checked on the POLST form.
The Reverse Side of the POLST Form
HIPAA permits the disclosure of the POLST form to other healthcare providers as necessary.
This section addresses common questions that may arise when using the POLST form.
Key points include:
  •  The voluntary nature of the POLST for individuals with advanced illness and/or frailty
  •  The POLST form should reflect the individual’s wishes now, in his/her current state of health. If the individual’s wishes change in the future as his/her health changes, and if the individual maintains capacity, he/she can update the POLST form
  •  Verbal orders, photocopies, faxes and electronic forms are valid and legal, so long as verbal orders are accompanied with a follow-up signature by the physician/APN
  •  Information regarding reviewing, modifying and voiding the POLST
  •  Overall guiding goals and questions regarding the completion of each section.
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Additional Resources
For Patients and Families
More information about N.J. POLST can be found at:
For more information on National POLST Paradigm Programs and the National POLST Paradigm Task Force, visit:
NJ Organ Procurement Organizations
The Sharing Network, 800-742-7365, Gift of Life, 215- 557-8090,
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