Legal Documents for All Ages 18 – 118 Part 1
Nancy M. Rice, Esquire, CELA
1236 Brace Road, Suite F, Cherry Hill, NJ 08033
Q: What are the “top 3” legal documents everyone should have?
A: 1. Advance Medical Directive/Living Will
2. Durable General Power of Attorney
3. Last Will and Testament
Q: Which document is most important?
A: Arguably, the documents are listed above in order of importance, meaning that the Advance Medical Directive/Living Will is arguably the most important.
When a child attains the age of eighteen (18) years, he or she becomes “legally competent” and parents lose their right to make medical decisions for the child. In fact, the HIPAA privacy law can make it impossible for parents to gain access to the child’s medical information, let alone make medical decisions in the event the child becomes incapacitated. Of course, this same HIPAA privacy law applies to the elderly, and everyone in between. In order to allow your loved ones to have access to your medical information and make decisions for you when you can’t (without involving a court, you must have a properly signed and witnessed Advance Medical Directive/Living Will.
Q: What is a “Living Will”?
A: The term “Living Will” was coined in the mid-1970’s following the Karen Ann Quinlan matter which reached the New Jersey Supreme Court. The Court strongly recommended in its opinion that every person over the age of eighteen (18) document in writing his or her wishes concerning life support.
Q: What is a “Health Care Proxy”? Is it the same as a “Living Will”?
The New Jersey Advance Directive law went into effect in January, 1992. After that time, a Living Will came to be known by many different terms such as:
Advance Medical Directive
Health Care Proxy
Health Care Power of Attorney
Medical Power of Attorney
Medical Proxy Directive
I favor the term “Advance Medical Directive/Living Will” so that people can figure out from the title what it is.
Q: Why do they ask me for my Living Will when I go to the Hospital?
A: In 1990 Congress passed a law, known as the “patient Self-Determination Act which requires all Hospitals & Nursing Homes to ask you, upon admission, whether you have an Advance Directive/Living Will, to follow the Directive if you have one, and to offer dispute resolution in the event there is a question regarding your Directive.
Q: What are the Legal Requirements to make a valid Living Will in New Jersey?
In order to sign an Advance Directive, New Jersey and most other state’s laws require:
1) That the signer be over 18 and competent to sign a legal document;
2) That the witnesses must attest to the fact that you are of sound mind and free of duress or undue influence when you sign the document;
3) That the document be witnessed and/or notarized.
a) New Jersey law requires either two (2) witnesses or a Notary Public. Pennsylvania law (which we must consider because many patients choose or end up in a Philadelphia hospital for certain procedures) requires two (2) witnesses, and does not recognize just a notary. For this reason, I set up my Advance Directive document for both two (2) witnesses and a Notary Public to sign.
b) Your Witnesses cannot be one of the people you have designated as your Health Care Representative!! This is especially important to remember if you are signing your Living Will around the kitchen table . . . .
c) Your Witnesses cannot be your attending physician or the Administrator or Employee of the f health care institution you are residing in unless he or she is also your relative.
Q: What are some of the issues to consider when making a Living Will?
A: Perhaps the most important thing to keep in mind is that you need to choose a person or persons whom you know will carry out your wishes. You are not required to name family members, and you might not want to tell anyone who you have named if you feel that others may put pressure on you to change your mind. You should always name a “backup” person in the event your first Representative falls ill or dies. Remember, you can only sign this document NOW when you are healthy!
In Part 2, we will discuss the another document which all of us should have in place: Durable General Power of Attorney.