A Health Care Directive, also referred to as a Living Will, is a very important document that every individual should have in place, regardless of such individual’s age or health. It is equally as important as a Last Will and Testament, and in certain circumstances, may prove to be a more important document. Few could forget the Florida fight over Terri Schiavo, the 26 year old healthy woman whose heart stopped while at home leaving her with irreversible brain damage. She remained in a permanent vegetative state while her parents and husband determined her fate, the former fighting to keep her alive with artificial measures. Her husband, on the other hand, argued that she would never have wanted to be kept alive in such a state. Like many individuals, Ms. Schiavo did not have an end of life care instruction in writing and therefore, her parents and husband were left to wage legal battle against one another for several years. Some fifteen years (15) later, Ms. Schiavo’s feeding tube was ordered removed and two weeks later she passed away.
Despite the highly publicized Schiavo matter, it appears that many people refrain from memorializing their health care decisions. A statistic quoted in a recent Bergen Record article astounded me. The article referenced a poll which indicated that 64% of baby boomers (as defined as individuals born between 1946 and 1964) did not have a Health Care Proxy or Living Will, the very document that, if properly drafted and executed, would have prevented the legal battle which ultimately determined Ms. Schiavo’s fate. This may be due in in part to people’s hesitation to plan for illness and death, or their belief that they are healthy and thus not in need of such a document.
The Document Itself
While the terms Health Care Proxy, Health Care Directive, and Living Will are essentially synonymous with one another, there are slight differences. While the purpose may be the same, specifically, to indicate an individual’s desires with regard to health care, a “Living Will” by itself, does not designate a health care representative to speak on your behalf in the event you are unable to speak for yourself. New Jersey’s response to the limitations of the Living Will, is a document known as a Health Care Directive which permits an individual to not only make known his/her specific wishes for health care, but also enables such individual to designate a health care representative to make medical decisions if he/she cannot make them himself/herself. This will be discussed in greater detail below. The Health Care Directive is permitted by statute in New Jersey, while in New York, the statute refers to the document as a Health Care Proxy. A Living Will is a document permitted by common or case law.
Importance of Memorializing Your Health Care Decisions and Appointing a Representative
Unforeseen injuries or mental incapacity are hardly ever planned; however, executing a Health Care Directive would make it possible for you to express your treatment preferences to those caring for you to ensure that your wishes are respected even when you cannot verbalize the decisions yourself. Preferences for artificial fluids and nutrition should always be memorialized, as well as whether you would like cardiopulmonary resuscitation (CPR).
Moreover, as stated above, you can designate a health care representative who would be legally obligated to consider your expressed wishes as you state in the instruction directive. Further, such designated representative could participate in discussions regarding your treatment and also to make decisions as your medical condition changes. The designation of a health care representative would prevent a costly court proceeding for the appointment of a guardian to act on your behalf, in the event of an unforeseen incapacity. Additionally, appointing a health care representative would alleviate family disputes regarding your care. Yet another benefit of executing a properly drafted Health Care Directive is the specific waiver of the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), which would authorize your representative to obtain medical records on your behalf and discuss medical issues with your health care professional.
The person designated in your document should know you well and it is important to choose someone whose judgment you have confidence. This could be a family or very close friend, as well as a spiritual/religious advisor, but whoever you choose should be well aware of your feelings and preferences towards your health care. Such individual should be given a copy of the executed Health Care Directive. Other copies should be kept in a safe place and presented upon admission to a hospital, nursing home or other health care facility.
While the importance of a Health Care Directive is emphasized in the foregoing, every individual should also have a Power of Attorney and Last Will and Testament. These documents will protect you and your family in the event of an unforeseen or foreseen circumstance. While no one likes to consider the possibility of death or incapacity, having these documents in place would alleviate some of the unnecessary stress during an already sensitive time. Please feel free to contact us for more information.
Nicole E. Russak is an Associate Attorney at WJ&L, who practices in Tax, Trusts, and Estates Department.