Living Wills
called Living Wills w state
info
Compiled By KENNETH A. VERCAMMEN
A living will is your
written expression of how you want to be treated in certain medical conditions.
Depending on state law, this document may permit you to express whether or not
you wish to be given life-sustaining treatments in the event you are terminally
ill or injured, to decide in advance whether you wish to be provided food and
water via intravenous devices ("tube feeding"), and to give other
medical directions that impact the end of life. "Life-sustaining
treatment" means the use of available medical machinery and techniques,
such as heart-lung machines, ventilators, and other medical equipment and
techniques that will sustain and possibly extend your life, but which will not
by themselves cure your condition. In addition to terminal illness or injury
situations, most states permit you to express your preferences as to treatment
using life-sustaining equipment and/or tube feeding for medical conditions that
leave you permanently unconscious and without detectable brain activity.
A living will applies in
situations where the decision to use such treatments may prolong your life for
a limited period of time and not obtaining such treatment would result in your
death. It does not mean that medical professionals would deny you pain
medications and other treatments that would relieve pain or otherwise make you
more comfortable. Living wills do not determine your medical treatment in
situations that do not affect your continued life, such as routine medical
treatment and non life-threatening medical conditions. In all states the
determination as to whether or not you are in such a medical condition is
determined by medical professionals, usually your attending physician and at
least one other medical doctor who has examined you and/or reviewed your
medical situation. Most states permit you to include other medical directions
that you wish your physicians to be aware of regarding the types of treatment
you do or do not wish to receive.
KENNETH VERCAMMEN & ASSOCIATES, PC
ATTORNEY AT LAW
2053
Woodbridge Ave.
Edison, NJ
08817
(Phone)
732-572-0500
All States have declared that competent adults
have the fundamental right in collaboration with their health care providers,
to control decisions about their own health care. States recognize in their law
and public policy, the personal right of the individual patient to make
voluntary, informed choices to accept, to reject or to choose among alternative
courses of medical and surgical treatment.
WHY LIVING WILLS
Modern advances in science and medicine have
made possible the prolongation of the lives of many seriously ill individuals,
without always offering realistic prospects for improvement or cure. For some
individuals the possibility of extended life is experienced as meaningful and
of benefit. For others, artificial prolongation of life may seem to provide
nothing medically necessary or beneficial, serving only to extend suffering and
prolong the dying process. States recognize the inherent dignity and value of
human life and within this context recognize the fundamental right of
individuals to make health care decisions to have life-prolonging medical or
surgical means or procedures provided, withheld, or withdrawn.
States recognize the right of competent adults
to plan ahead for health care decisions through the execution of advance
directives, such as living wills and durable powers of attorney, and to have
their wishes respected, subject to certain limitations.
PURPOSE OF LIVING WILLS
In order to assure respect for patients
previously expressed wishes when the capacity to participate actively in
decision making has been lost or impaired; to facilitate and encourage a sound
decision making process in which patients, health care representatives,
families, physicians, and other health care professionals are active
participants; to properly consider patients interests both in self-determination
and in well-being; and to provide necessary and appropriate safeguards
concerning the termination of life-sustaining treatment for incompetent
patients as the law and public policy of this State, the Legislatures have
enacted Living Will/ Advance Directives for Health Care Acts.
REQUIREMENTS OF STATUTE
The advance directive for health care (Living
Will) requires a writing executed in accordance with the requirements of the
state law. It must be either signed and dated in front of an attorney at law or
other person authorized to administer oaths, or in the presence of two
subscribing adult witnesses. If the two adult witnesses are used, they both
must attest that the declarant is of sound mind and not under undue influence.
A designated health care representative shall not act as a witness to the
execution of the advance directive. Since this is a legal document, it must be
executed properly to be valid under the statute.
HEALTH CARE REPRESENTATIVE
The declarant must designate one or more
alternative health care representatives. "Health care representative"
means the person designated by you under the Living Will for the purpose of
making health care decisions on your behalf.
WHEN DOES THE ADVANCE DIRECTIVE BECOME
OPERATIVE
An advance directive becomes operative when (1)
it is transmitted to the attending physician or to the health care institution,
and (2) it is determined pursuant to the Act that the patient lacks capacity to
make a particular health care decision.
Treatment decisions pursuant to an advance directive
shall not be made and implemented until there has been a reasonable opportunity
to establish and where appropriate confirm, a reliable diagnosis for the
patient which shall include the attending physicians opinion concerning the
nature, cause, extent, and probable duration of the patients incapacity, and
shall be made a part of the patients medical records. For additional
information or to have a "Living Will" prepared, see your attorney.
In addition, be certain your Last Will and testament is up to date.
add to NJLaws.com/living_wills.htm
THE LIVING WILL:
Planning Ahead For Your Health Care:
KENNETH A. VERCAMMEN
Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817
Abstracted from NJ Commission on Legal &
Ethical Problems in the Delivery of Health Care
732-572-0500 Legislative Study Commission
Brochure
1. Introduction
2. Questions and Answers
3. Terms You Should
4. Understand
1. Introduction:
As Americans, we take it for granted that we are
entitled to make decisions about our own health care. Most of the time we make
these decisions after talking with our own physician about the advantages and
disadvantages of various treatment options. The right of a competent individual
to accept or refuse medical treatment is a fundamental right now fully protected
by law.
But what happens if serious illness, injury or
permanent loss of mental capacity makes us incapable of talking to a doctor and
deciding what medical treatments we do or do not want? These situations pose
difficult questions to all of us as patients, family members, friends and
health care professionals. Who makes these decisions if we cant make them for
ourselves? If we can’t make our preferences known how can we make sure that our
wishes will be respected? If disagreements arise among those caring for us
about different treatment alternatives how will they be resolved? Is there a
way to alleviate the burdens shouldered by family members and loved ones when
critical medical decisions must be made?
Living Will:
By using documents known as advance directives
for health care, you can answer some of these questions and give yourself the
security of knowing that you can continue to have a say in your own treatment.
A properly prepared Living Will permits you to plan ahead so you can both make
your wishes known, and select someone who will see to it that your wishes are
followed.
After all, if you are seriously ill or injured
and cant make decisions for yourself someone will have to decide about your
medical care. Doesn’t it make sense to
•Have a person you trust make decisions for you,
•Provide instructions about the treatment you do
and do not want, or
•Both appoint a person to make decisions and
provide them with instructions.
A Few Definitions
Throughout this booklet there are four phrases.
Each of these phrases has a special meaning when it comes to allowing you to
make decisions about your future health care.
• Advance directive-If you want your wishes to
guide those responsible for your care you have to plan for what you want in
advance. Generally such planning is more likely to be effective if it’s done in
writing. So, by an "advance directive" we mean any written directions
you prepare in advance to say what kind of medical care you want in the event
you become unable to make decisions for yourself.
1. Proxy directives - One way to have a say in
your future medical care is to designate a person (a proxy) you trust and give
that person the legal authority to decide for you if you are unable to make
decisions for yourself. Your chosen proxy (known as a health care
representative) serves as your substitute, "standing in" for you in
discussions with your physician and others responsible for your care. So, by a
proxy directive we mean written directions that name a "proxy" to act
for you. Another term some people use for a proxy directive is a "durable
power of attorney for health care.”
2. Instruction directives - Another way to have
a say in your future medical care is to provide those responsible for your care
with a statement of your medical treatment preferences. By "instruction
directive" we mean written directions that spell out in advance what
medical treatments you wish to accept or refuse and the circumstances in which
you want your wishes implemented. These instructions then serve as a guide to
those responsible for your care. Another term some people use for an
instruction directive is a "living will.”
3. Combined directives - A third way combines
features of both the proxy and the instruction directive. You may prefer to
give both written instructions, and to designate a health care representative
or proxy to see that your instructions are carried out.
2. Questions and Answers
1. Why should I consider writing an advance
directive/ living will?
Serious injury, illness or mental incapacity may
make it impossible for you to make health care decisions for yourself. In these
situations, those responsible for your care will have to make decisions for
you. Advance directives are legal documents which provide information about
your treatment preferences to those caring for you, helping to insure that your
wishes are respected even when you cant make decisions yourself A clearly
written and legally prepared directive helps prevent disagreements among those
close to you and alleviates some of the burdens of decision making which are
often experienced by family members, friends and health care providers.
2. When does my advance directive take effect?
Your directive takes effect when you no longer
have the ability to make decisions about your health care. This judgment is
normally made by your attending physician, and any additional physicians who
may be required by law to examine you. If there is any doubt about your ability
to make such decisions, your doctor will consult with another doctor with training
and experience in this area Together they will decide if you are unable to make
your own health care decisions.
3. What happens if I regain the ability to make
my own decisions?
If you regain your ability to make decisions,
then you resume making your own decisions directly. Your directive is in effect
only as long as you are unable to make your own decisions.
4. Are there particular treatments I should
specifically mention in my directive?
It is a good idea to indicate your specific
preferences concerning two specific kinds of life sustaining measures:
1. Artificially provided fluids and nutrition;
and
2. Cardiopulmonary resuscitation.
Stating your preferences clearly concerning
these two treatments will be of considerable help in avoiding uncertainty,
disagreements or confusion about your wishes. The enclosed forms provide a
space for you to state specific directions concerning your wishes with respect
to these two forms of treatment.
Fluids and Nutrition. I request that
artificially provided fluids and nutrition, such as by feeding tube or
intravenous infusion (initial one)
1. ______ shall be withheld or withdrawn as
"Life Sustaining Treatment."
2. ______ shall be provided to the extent
medically appropriate even if other "Life Sustaining Treatment" is
withheld or withdrawn.
Directive as to Medical Treatment. I request
that "Life Sustaining Treatment" be withheld or withdrawn from me in
each of the following circumstances: (Initial all that apply)
1. ______ If the "life sustaining treatment"
is experimental and not a proven therapy, or is likely to be ineffective or
futile in prolonging my life, or is likely to merely prolong an imminent dying
process;
2. ______ If I am permanently unconscious (total
and irreversible loss of consciousness and capacity for interaction with the
environment);
3. ______ If I am in a terminal condition
(terminal stage of an irreversibly fatal illness, disease, or condition); or
4. ______ If I have a serious irreversible
illness or condition, and the likely risks and burdens associated with the
medical intervention to be withheld or withdrawn outweigh the likely benefits
to me from such intervention.
5. ______ None of the above. I direct that all
medically appropriate measures be provided to sustain my life, regardless of my
physical or mental condition.
5. What is the advantage of having a health care
representative, isn’t it enough to have an instruction directive?
Your doctor and other health care professionals
are legally obligated to consider your expressed wishes as stated in your
instruction directive or "living will.” However, instances may occur in
which medical circumstances arise or treatments are proposed that you may not
have thought about when you wrote your directive. If this happens your health care
representative has the authority to participate in discussions with your health
care providers and to make treatment decisions for you in accordance with what
he or she knows of your wishes. Your health care representative will also be
able to make decisions as your medical condition changes, in accordance with
your wishes and best interests.
6. If I decide to appoint a health care
representative, who should I trust with this task?
The person you choose to be your health care
representative has the legal right to accept or refuse medical treatment
(including life-sustaining measures) on your behalf and to assure that your
wishes concerning your medical treatment are carried out. You should choose a
person who knows you well, and who is familiar with your feelings about
different types of medical treatment and the conditions under which you would
choose to accept or refuse either a specific treatment or all treatment.
A health care representative must understand
that his or her responsibility is to implement your wishes even if your
representative or others might disagree with them. So it is important to select
someone in whose judgment you have confidence. People that you might consider
asking to be your health care representative include:
• a member of your family or a very close
friend, your priest, rabbi, or minister, or
• a trusted health care provider, but your
attending physician cannot serve as both your physician and your health care
representative.
7. Should I discuss my wishes with my health
care representative and others?
Absolutely! Your health care representative is
the person who speaks for you when you cant speak for yourself. It is very
important that he or she has a clear sense of your feelings, attitudes and
health care preferences. You should also discuss your wishes with your
physician, family members and others who will be involved in caring for you.
8. Does my health care representative have the
authority to make all health care decisions for me?
It is up to you to say what your health care
representative can and cannot decide. You may wish to give him or her broad
authority to make all treatment decisions including decisions to forego
life-sustaining measures. On the other hand, you may wish to restrict the
authority to specific treatments or circumstances. Your representative has to
respect these limitations.
9. Is my doctor obligated to talk to my health
care representative?
Yes. Your health care representative has the
legal authority to make medical decisions on your behalf, in consultation with
your doctor. Your doctor is legally obligated to consult with your chosen
representative and to respect his or her decision as if it were your decision.
10. Is my health care representative the only
person who can speak for me, or can other friends or family members participate
in making treatment decisions?
It is generally a good idea for your health care
representative to consult with family members or others in making decisions,
and if you wish you can direct that he or she do so. It should be understood by
everyone, however, that your health care representative is the only person with
the legal authority to make decisions about your health care even if others
disagree.
11. Can I request all measures be taken to
sustain my life?
Yes. You should make this choice clear in your
advance directive. Remember, a directive can be used to request medical
treatments as well as to refuse unwanted ones.
12. Does my doctor have to carry out my wishes
as stated in my instruction directive?
If your treatment preferences are clear your
doctor is legally obligated to implement your wishes. unless doing this would
violate his or her conscience or accepted medical practice. If your doctor is
unwilling to honor your wishes he or she must assist in transferring you to the
care of another doctor.
13. Can I make changes in my directive?
Yes. An advance directive can be updated or
modified in whole or in part, at any time, by a legally competent individual.
You should update your directive whenever you feel it no longer accurately
reflects your wishes. It is a good idea to review your directive on a regular
basis, perhaps every 5 years. Each time you review the directive, indicate the
date on the form itself and have someone witness the changes you make. If you
make a lot of changes, you may want to write a new directive. Remember to
notify all those important to you of any changes you make.
14. Can I revoke my directive at any time?
Yes. You can revoke your directive at any time,
regardless of your physical or mental condition. This can be done in writing,
orally, or by any action, which indicates that you no longer want the directive
to be in effect.
15. Who should have copies of my advance
directive?
A copy should be given to the person that you
have named as your health care representative, as well as to your family, your
doctor, and others who are important to you. If you enter a hospital, nursing
home, or hospice, a copy of your advance directive should be provided so that
it can be made part of your medical records. The back cover of this brochure
contains a wallet size card you can complete and carry with you to tell others
that you have an advance directive.
16. Can I use my advance directive to make an
organ donation upon my death?
Yes. You may state your wishes regarding organ
donation. Also you may want to place an organ donor card in your wallet to
alert medical personnel. Any card will do. If you decide to make a gift of your
organs upon your death please complete the card and carry it with you at all
times. For further information regarding organ donation you should contact
either an organ procurement agency or your local hospital.
3. Terms You Should Understand
1. Artificially provided fluids and nutrition:
The provision of food and water to seriously ill
patients who are unable or unwilling to eat. Depending on the method used, such
as insertion of a feeding tube or an intravenous line, and the condition of the
patient, techniques may involve minor surgery, continuous supervision by
medical (and sometimes surgical) personnel, risk of injury or infection, and
side effects.
2. C a r d i o p u l m o n a r y Resuscitation
(CPR):
A treatment administered by health care
professionals when a person’s heartbeat and breathing stops. CPR may restore
functioning if administered properly and in a timely fashion and may include
the use of mechanical devices and/or drugs.
3. Life-sustaining measures:
Any medical procedure, device, 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.
thereby prolonging the life of a patient.
4. Decision making capacity:
A patient’s ability to understand the benefits
and risks of a proposed medical treatment and its alternatives and to reach an
informed decision.
5. Health care representative or health care
proxy:
In the event an individual loses decision-making
capacity, a health care representative or proxy is a person who has been
legally designated to make decisions on his or her behalf. A health care
representative is appointed through the execution of a proxy directive (a
durable power of attorney for health care).
6. Terminal condition :
The terminal stage of an irreversibly fatal
illness, disease, or condition. While determination of a specific "life
expectancy" is not required for a diagnosis of a "terminal condition
a prognosis of a life expectancy of one year or less, with or without the
provision of life-sustaining treatment, is generally considered terminal.
7. P e r m a n e n t unconsciousness:
A medical condition defined as total and
irreversible loss of consciousness. The term "permanently
unconscious" includes the conditions persistent vegetative state and
irreversible coma Patients in this condition cannot interact with their
surroundings or others in any way and do not experience pleasure or pain.
8. Persistent vegetative state:
A condition of permanent unconsciousness in
which the patient loses all capacity for interaction with their environment or other
people. It is usually caused by an injury to the brain. It is normally not
regarded as a terminal condition and with the aid of medical care and
artificial fluids and nutrition patients can survive for many years.
9. Incurable and irreversible chronic diseases:
Disabling diseases such as Alzheimers disease,
organic brain syndrome or other diseases, which get progressively worse over
time, eventually resulting in death. Depending on the disease, the patient may
also experience partial or complete loss of physical and mental abilities.
Because the rate at which these diseases advance may be slow, such diseases are
not considered terminal in their early stages.
10. Whole brain death:
Death due to total and irreversible loss of all
functions of the entire brain, including the brain stem. The criteria of whole
brain death must be used to accurately determine death in individuals who have
suffered massive or total brain damage but whose heart and lungs are kept
functioning by machines. Brain dead individuals are not vegetative or in a
coma. but are, in fact, dead.
11. Attending physician :
The doctor directly responsible for your medical
treatment. He or she may or may not be your regular family physician. Depending
on your health care needs the attending physician may consult with others in
order to diagnose and treat your medical condition, but he or she remains
directly responsible for your care.
Kenneth A. Vercammen is an Edison, Middlesex
County, NJ trial attorney who has published 125 articles in national and New
Jersey publications on Probate and litigation topics. He often lectures to
trial lawyers of the American Bar Association, New Jersey State Bar Association
and Middlesex County Bar Association. He is Chair of the American Bar
Association Estate Planning & Probate Committee. He is also Editor of the
ABA Elder Law Committee Newsletter
He is a highly regarded lecturer on litigation
issues for the American Bar Association, ICLE, New Jersey State Bar Association
and Middlesex County Bar Association. His articles have been published by New
Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey
Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review.
Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
In his private practice, he has devoted a
substantial portion of his professional time to the preparation and trial of
litigated matters. He has appeared in Courts throughout New Jersey several
times each week on many personal injury matters, Municipal Court trials, and
contested Probate hearings.
KENNETH VERCAMMEN & ASSOCIATES, PC
Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817
732-572-0500
