“Must have” Legal Documents Part 1 of 3

Review-Your-Will

by Nancy Rice, ESQ.~
Question: What are the “top 3″ legal documents everyone should have?

Answer:

  1. Advance Medical Directive/Living Will
  2. Durable General Power of Attorney
  3. Last Will and Testament

Q: Which document is most important?

A: I listed the documents 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 decisons 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 is seriously ill or incapacitated.

As an adult, if you want to make sure that your loved ones have access to your medical information and can 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) sign a document which indicates 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 Directive
  • 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 our next issue, we will discuss the another “must have” document: Durable General Power of Attorney.

 

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About Nancy Rice

I am an Elder Law Attorney, focusing my practice in the areas of Wills, Trusts and Estates, financial planning for persons with disabilities and persons in need of home health, assisted living and nursing home care.   I have been practicing Elder Law since 1986, have been Certified as an Elder Law Attorney (CELA) since 1997, and manage a five-attorney firm, with offices in Cherry Hill and Ocean City, NJ. Rice Elder Law. I am admitted to practice law in both New Jersey and Pennsylvania.

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  1. Pingback: "Must Have" Legal Documents: Part 2 of 3 | Family Affaires.com

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