Advance Directives & Living Wills in New Jersey

Most advance-directive calls arrive in one of a few recurring situations. A loved one has just experienced a sudden medical event — stroke, accident, cardiac arrest — and the family is making life-or-death decisions in a hospital corridor with no document specifying what the patient actually wanted. An aging parent has just received a serious diagnosis, and the adult children realize no one has been clearly named to make medical decisions. A young adult is finally assembling a first estate plan and didn't realize the healthcare proxy matters as much as the will. A divorce has just finalized, and the old advance directive still names the ex-spouse as healthcare representative. Different stories, one common thread: a moment when someone could not speak for themselves, and no clear instructions to guide the people who had to act.

Advance directives under the New Jersey Advance Directives for Health Care Act (N.J.S.A. 26:2H-53source) address exactly this gap. A properly drafted living will plus durable healthcare proxy plus HIPAA authorization tells doctors and family what you want, designates who decides when you can't, and gives that person legal authority to act. The work is matching the documents to your actual preferences rather than leaving the decisions to whoever happens to be in the hospital corridor.

The Decision No Family Wants to Make Without Guidance

A man in his sixties suffers a massive cardiac event. He is placed on a ventilator in the ICU. The physicians tell his family that his prognosis is poor — he has no meaningful chance of recovery. His wife wants to honor what she believes were his wishes and discontinue life support. His adult daughter disagrees. His son lives across the country and cannot be reached. There is no advance directive. No living will. No healthcare proxy. The family now faces days or weeks of agonizing disagreement, potentially requiring a court to intervene, while their husband and father lies in a hospital bed connected to machines he may never have wanted.

Versions of this scenario unfold in New Jersey hospitals every day, and an advance directive is designed precisely to head them off. In a single document, you state your treatment preferences and name the person you trust to speak for you when you cannot speak for yourself. That does not guarantee a particular outcome — no document can — but it replaces guesswork with your own voice, and it gives one named person the legal standing to act rather than leaving a family to argue. The cost is modest. What it spares the people you love is not.

The Legal Foundation: From Quinlan to Today

The right to make advance healthcare decisions has deep roots in New Jersey law. In In re Quinlan, 70 N.J. 10 (1976)source, the New Jersey Supreme Court established the groundbreaking principle that the constitutional right to privacy encompasses the right to refuse medical treatment — and that this right can be exercised by a guardian on behalf of an incapacitated person. This decision, arising from the case of Karen Ann Quinlan at a New Jersey hospital, became the catalyst for advance directive legislation nationwide.

The U.S. Supreme Court later affirmed the constitutional foundation in Cruzan v. Director, Missouri Department of Health, 497 U.S. 261 (1990)source, holding that a competent person has a constitutionally protected liberty interest in refusing unwanted medical treatment — and that states may require clear and convincing evidence of the patient's wishes before life support is withdrawn. New Jersey responded with the Advance Directives for Health Care Act (N.J.S.A. 26:2H-53 et seq.source), providing every adult the legal mechanism to document those wishes in advance.

The NJ Supreme Court further refined the framework in In re Conroy, 98 N.J. 321 (1985)source, establishing a three-part test for healthcare decision-making on behalf of incapacitated patients: the subjective test (clear evidence of the patient's wishes), the limited-objective test (some evidence of wishes plus burdens outweigh benefits), and the pure-objective test (burdens markedly outweigh benefits). An advance directive satisfies the highest standard — the subjective test — by providing direct evidence of your wishes in your own words.

What an Advance Directive Covers

Under the New Jersey Advance Directives for Health Care Act (N.J.S.A. 26:2H-53 et seq.source), an advance directive is a written document that addresses two distinct but complementary functions:

Instruction Directive (Living Will)

The instruction directive states your specific wishes regarding medical treatment in circumstances where you cannot communicate. You may address:

• Terminal conditions: Whether you want life-sustaining treatment if you have an incurable and irreversible condition that will result in death within a relatively short time
• Permanent unconsciousness: Whether you want to be maintained on life support if you are in a persistent vegetative state or irreversible coma with no reasonable prospect of recovery
• Severe, irreversible conditions: Whether you want aggressive treatment for conditions that are not terminal but are incurable and leave you unable to make decisions (e.g., advanced dementia)
• Artificial nutrition and hydration: Whether you want to receive food and water through tubes if you cannot eat or drink on your own
• Pain management: Your preferences regarding comfort care and palliative treatment, including whether you want pain relief even if it may hasten death
• Organ and tissue donation: Whether you wish to be an organ donor and, if so, any limitations on which organs or tissues may be donated

Proxy Directive (Healthcare Power of Attorney)

The proxy directive names a healthcare representative — a person you authorize to make medical decisions on your behalf in any situation where you cannot communicate your wishes. Unlike an instruction directive, which can only address situations you anticipate in advance, a proxy directive empowers a trusted individual to respond to unforeseen medical circumstances using their knowledge of your values, your beliefs, and your general treatment philosophy.

Your healthcare representative can:

• Consent to or refuse medical treatment on your behalf
• Access your protected health information (PHI) under HIPAA — your representative qualifies as a "personal representative" under 45 C.F.R. § 164.502(g)source, giving them the right to review medical records and receive information about your condition, prognosis, and treatment options
• Authorize or decline surgical procedures
• Make decisions about experimental treatments or clinical trials
• Arrange for transfer between medical facilities
• Make end-of-life care decisions consistent with your expressed wishes

HIPAA note: While your healthcare representative has legal access to your medical information under federal law (45 C.F.R. § 164.502(g)source), we recommend including a specific HIPAA authorization within your advance directive. This eliminates delays and disputes with healthcare providers who may not be familiar with the personal representative exception. Simon Law Group includes HIPAA authorization language in every advance directive we prepare.

Combined Advance Directive (Recommended)

Most estate planning attorneys — including the attorneys at Simon Law Group — recommend a combined advance directive that includes both an instruction directive and a proxy directive. The instruction directive provides specific guidance for predictable scenarios. The proxy directive provides a decision-maker for everything else. Together, they help ensure that your medical care reflects your wishes in every situation.

New Jersey Advance Directive Requirements

Under N.J.S.A. 26:2H-56source, a valid advance directive in New Jersey must meet these requirements:

Requirement	Detail	NJ Statute
Written form	Must be in writing	N.J.S.A. 26:2H-56source
Signed and dated	Signed and dated by the declarant or at the declarant's direction	N.J.S.A. 26:2H-56source
Witnessing (Option A)	Two adult witnesses who attest the declarant is of sound mind and free of duress	N.J.S.A. 26:2H-56source
Witnessing (Option B)	Acknowledged before a notary public, attorney, or authorized officer	N.J.S.A. 26:2H-56source
Witness restriction	Your designated healthcare representative may not serve as a witness	N.J.S.A. 26:2H-56source
Revocation	May be revoked at any time by written or oral notice, or by any act evidencing intent	N.J.S.A. 26:2H-56source

Choosing Your Healthcare Representative

Your healthcare representative will make some of the most personal and consequential decisions imaginable — potentially including whether to continue or discontinue life support. Choose someone who:

• Knows your values: This person should understand not just your medical preferences but your deeper beliefs about quality of life, dignity, suffering, and faith
• Can handle pressure: Medical crises unfold rapidly. Your representative must be able to process complex information from physicians and make clear-headed decisions under extreme stress
• Will advocate for you: Your representative must be willing to push back against physicians, family members, or institutional pressures that conflict with your stated wishes
• Is accessible: Medical decisions often cannot wait. Your representative should be reachable at any time and able to be physically present at a hospital if needed
• Respects your wishes: Even if your representative personally disagrees with your choices — for example, your preference to decline aggressive treatment — they must honor your directive, not substitute their own judgment

Name at least one alternate representative in case your first choice is unavailable, unable, or unwilling to serve when the time comes.

POLST: Translating Your Directive into a Medical Order

A POLST (Practitioner Orders for Life-Sustaining Treatment) is a complementary document, not a replacement for your advance directive. It is a medical order signed by both you and your physician that translates your wishes into specific clinical instructions. Because it carries the force of a physician's order rather than a statement of preference, emergency responders and hospital staff are generally able to act on it immediately, without first locating and interpreting a longer directive. That is the practical difference a POLST makes: an advance directive tells the system what you want, while a POLST puts that instruction in the form the system is built to execute on the spot.

A POLST is typically appropriate for individuals who:

• Have a serious illness, advanced frailty, or limited life expectancy
• Want to ensure emergency responders honor their wishes without delay
• Reside in a nursing home, assisted living facility, or hospice program
• Want a brightly colored, easily identifiable form that first responders can locate quickly

Your advance directive remains the foundational document that governs all healthcare decisions. The POLST operationalizes those decisions for emergency situations.

Common Misconceptions About Advance Directives

• "I'm too young for this." — Terri Schiavo was 26 when she collapsed without an advance directive. The years of litigation that followed, fought between her husband and her parents, became a national cautionary tale precisely because no document recorded what she would have wanted. Crises do not check your age first. Every adult should have an advance directive.
• "My family knows what I want." — Knowing and proving are different things. Without a written directive, your family must guess — and if they disagree, a court decides.
• "My spouse automatically speaks for me." — Your spouse has no automatic legal authority to make medical decisions unless you specifically designate them as your healthcare representative in an advance directive or they are appointed by a court.
• "Advance directives are only about pulling the plug." — Advance directives cover a wide range of decisions: pain management, experimental treatments, organ donation, rehabilitation preferences, and more. They are about ensuring your care reflects your values in every situation.
• "My doctor has this on file." — Even if your physician has a copy, it does nothing if you are brought to a different hospital, treated by a different physician, or if your doctor retires. Your healthcare representative and family members should have copies, and the document should be easily accessible.

How an Advance Directive Fits into Your Estate Plan

An advance directive works alongside your other estate planning documents to provide comprehensive protection:

• Last will and testament: Governs asset distribution after death. An advance directive governs medical decisions during life.
• Durable power of attorney: Governs financial decisions during incapacity. An advance directive governs healthcare decisions. These are separate documents with separate agents — you may want your spouse handling finances but your sibling (a nurse) making medical decisions.
• Revocable living trust: Manages assets during incapacity and after death. An advance directive manages your body during incapacity. Together, they cover every dimension of your life if you cannot act for yourself.

This is why a will alone is not a complete plan. A will speaks only after death and only about property; it says nothing about who decides your medical care, or your finances, in the months or years you might spend incapacitated but very much alive. The advance directive, the power of attorney, and (for many families — particularly those with real estate, a net worth above roughly $250,000, a blended family, or a desire to keep matters out of probate) a revocable living trust are the documents that govern that gap. The right combination depends on your assets, your family, and your goals, which is exactly what a planning conversation is for.

Frequently Asked Questions About Advance Directives in New Jersey

What is an advance directive?

A legal document that communicates your medical treatment wishes and names a healthcare decision-maker if you become unable to speak for yourself. Governed by the NJ Advance Directives for Health Care Act (N.J.S.A. 26:2H-53 et seq.source).

What are the requirements?

Written, signed and dated, either witnessed by two adults or notarized (N.J.S.A. 26:2H-56source). Your healthcare representative cannot serve as a witness.

Living will vs. healthcare proxy?

A living will states your specific treatment preferences. A healthcare proxy names a decision-maker. A combined directive includes both — and is what we recommend.

Can I revoke it?

Yes, at any time, by written or oral notice or any act showing your intent. A new directive automatically supersedes any prior version.

What if I don't have one?

Decisions fall to your family, who must guess at what you would have wanted. If they disagree, the dispute can end up before a court. Your care may not reflect your actual wishes, and the people you love carry the weight of choices you could have made for them in advance.

What is a POLST?

A medical order signed by you and your physician that translates your advance directive into specific clinical instructions for emergency responders. It complements — but does not replace — your advance directive.

Related Estate Planning Resources

• Estate Planning Overview
• Power of Attorney — financial decision-making authority
• Wills and Testaments
• Guardianship — when no directive exists
• Alzheimer's & Dementia Planning
• Plans and Packages — advance directive included in complete plans from $1,250

Give Your Family the Gift of Clarity

An advance directive is one of the most compassionate things you can do for the people you love. It spares them from guessing, from arguing, and from carrying the weight of decisions they were never meant to make alone. Most clients are surprised by how straightforward the process is: a focused conversation about your wishes and the person you trust to honor them, followed by a document drafted to New Jersey's statutory requirements and properly witnessed or notarized. At Simon Law Group, advance directives are included in our complete estate planning packages starting at $1,250, or available as a standalone document for $300.

Call (800) 709-1131 to schedule your consultation, or get started online.

Frequently Asked Questions

What is an advance directive in New Jersey?

An advance directive is a legal document that communicates your wishes regarding medical treatment if you become unable to speak for yourself. Under the New Jersey Advance Directives for Health Care Act (N.J.S.A. 26:2H-53 et seq.), an advance directive can include an instruction directive (living will) stating your treatment preferences, a proxy directive naming a healthcare representative to make decisions for you, or a combined directive that does both.

What are the requirements for a valid advance directive in NJ?

Under N.J.S.A. 26:2H-56, a valid NJ advance directive must be in writing, signed and dated by the declarant, and either witnessed by two adult witnesses who attest you are of sound mind and free of duress, or acknowledged before a notary public, attorney, or other authorized officer. Your designated healthcare representative cannot serve as a witness.

What is the difference between a living will and a healthcare proxy?

A living will (instruction directive) states your specific treatment preferences — for example, whether you want life-sustaining treatment if you are in a terminal condition or permanent unconscious state. A healthcare proxy (proxy directive) names a person to make medical decisions for you in any situation where you cannot communicate. A combined advance directive includes both. Most estate planning attorneys recommend the combined form because a proxy can respond to unanticipated situations that a living will cannot predict.

Can I revoke my advance directive?

Yes, at any time. Under New Jersey law, you can revoke your advance directive by written or oral notification to a physician, nurse, or other health care professional, or by any act that clearly evidences your intent to revoke. A new advance directive automatically supersedes any prior version.

What happens if I don't have an advance directive?

Without an advance directive, medical decisions fall to your family members — often in a hospital corridor during a crisis. If family members disagree about your care, the dispute may require court intervention. Even without disagreement, your family carries the emotional burden of guessing what you would have wanted. An advance directive is designed to lift that burden by putting your choices, and your chosen decision-maker, in writing before the crisis arrives.

What is a POLST form and how is it different from an advance directive?

A POLST (Practitioner Orders for Life-Sustaining Treatment) is a medical order signed by both you and your physician that translates your advance directive wishes into specific clinical instructions. Unlike an advance directive, a POLST is a physician's order that emergency responders and hospital staff must follow. It is typically used by individuals with serious illnesses or advanced age who want to ensure their treatment preferences are immediately actionable.