Health Planning

Living Wills A living will is a document that allows you to express your desires regarding medical decisions before you become ill. It is meant for the situation in which you are too ill to make an informed medical decision. Under a law passed in New Jersey on July 11, 1991, but not effective until January 7, 1992, there are four key ideas behind every living will:             1. Control; 2. Competence; 3. Collaboration; and 4. Choices. We will call these four ideas the Four C's. If you understand these, you understand the New Jersey Living Will Law. Control: You can control health care decisions in one of two ways. First, you can instruct your doctor, in an "Advance Directive," to withhold treatment for you in certain specific situations. Second, you can also name a person, called a "Health Care Representative," to stand in your shoes when you are not able to make a decision regarding your treatment. You can make an advance directive, name a health care representative, or both. Competence: Your advance directive does not become binding and your health care representative will not begin to make decisions on your behalf until you do not have the capacity to make your own decisions regarding your treatment. Your doctor and a second doctor must both confirm, in writing, that you lack the capacity to make treatment decisions. You must be told that you have been determined to be incapacitated, and that you may dispute the determination. Even after that point, your doctor and health care representative must involve you in their decision making. Even if you cannot competently make your own decisions, you can, at any time, decide to accept medical treatment you previously decided should be withheld from you. Collaboration: Your doctor and other health care providers have a vital role to play in the new Living Will Statute. Among their duties and responsibilities are the following: (1) Inform you or your health care representative so that you can make informed decisions regarding your treatment. (2) Ask you, at appropriate times, whether you have an advance directive or have designated a health care representative. (3) Make decisions in the spirit of your advance directive when it does not specifically deal with the situation at hand, and make decisions in your best interests. (4) Follow your instructions in your advance directive unless it would be contrary to law or violate medical standards. Your doctor also has the right to refuse to follow your instructions if he is morally opposed to them, but he must arrange to transfer you into another physicians care. As you can see, the law anticipates that your provider will work with you and your health care representative to satisfy your wishes. Choices: The law allows you to choose to have extraordinary lifesaving measures, including intravenous food and water, withheld from you in four situations: (1) When the treatment is experimental, futile or only prolongs dying; (2) When you are in a permanent, unconscious state; (3) When you are in a terminal condition; (4) When you have a serious, irreversible illness and the risk and burdens of treatment outweigh the likely benefits, or when medical intervention would be inhumane. The law is an opportunity for you to take control of your life to determine when you no longer want your life artificially maintained. Defining Death The New Jersey Declaration of Death Act was signed by the Governor on April 8, 1991 and became effective September 28, 1991. The Act defines when death actually occurs. The old law was that when your heart had stopped, you would be declared dead. This allows someone whose heart is kept working by artificial means to be declared dead. Under the current law, you may be declared dead when your brain has stopped working. The Act allows an individual, however, to inform his treating physician or to place a note on his medical records that declaring him dead when his brain stops working would violate his personal religious beliefs. In these cases, death can only be declared when your heart stops. There is a relationship between the Declaration of Death Act and the Living Will Law. If you decide that you do not want life-sustaining treatment withdrawn, even if you are in an irreversible coma and your brain has stopped working, you should also make sure to specifically note on your chart and direct your health care representative to tell the doctor that it is your religious belief that death should not be declared until your heart stops. WHAT IF ? What if I change my mind after signing my Living Will? You can revoke your Living Will at any time, either orally or in writing, competent or incapacitated. What if the person I name cannot act as my health care representative? The law allows you to name a health care representative and one, or several, alternates. It is wise to do so. What if my religious beliefs require me to reject treatment in additional situations ? The law does not in any way alter your constitutionally protected right to refuse treatment. It does, however, list situations where treatment can always be refused. Power of Attorney A health care representative is appointed to make your health care treatment decisions on your behalf. It avoids a lengthy legal process in which you would be declared incapacitated, and a guardian would be appointed by a Court to make those decisions. In addition to your treatment decisions, someone must be in a position to act as your financial representative. Someone must be able to go to the bank and withdraw money from your checking account or sign checks to pay the doctors and the hospital for your treatment. This individual may or may not be your health care representative. This person is named under a "Power of Attorney" document. A Power of Attorney allows someone to act for you in financial matters. The person you name would deposit money, withdraw funds and sign your checks on your behalf. His powers are as broad or as narrow as you determine they should be. Furthermore, you can either decide to appoint someone to act in this capacity now, or upon the occurrence of an event in the future, such as your becoming incapacitated and unable to manage your own affairs. It is a vital tool in estate planning. Parting Words A comprehensive health care plan will include an advance directive, the designation of a health care representative, an instruction to your health care representative or in your advance directive regarding whether or not you agree with the definition of death in the New Jersey Declaration of Death Act, and a Power of Attorney, allowing someone to pay your medical bills should you become incapacitated. You should also consider reviewing your regular Will or preparing a regular Will at this time. In a broader sense, you may also want to plan financially for your final illness. This would require you to consider your present assets and how they are held in the light of Medicare and Medicaid regulations. Arrangements should also be made to advise your family, your health care providers, and your other advisers of your wishes. For information regarding these subjects, please do not hesitate to call Michael Bolton, Esq. at (973) 425-0497.