What is a New Jersey advance directive for health care?

A proxy directive designating a health care representative — an adult with mental capacity, with alternates in order of priority — and an instruction directive stating the declarant's treatment philosophy and objectives or specific wishes on providing, withholding or withdrawing health care, including life-sustaining treatment, together or separately (N.J.S.A. 26:2H-58), signed and dated before two adult subscribing witnesses or acknowledged before a notary public, attorney or other person authorized to administer oaths (N.J.S.A. 26:2H-56). It is separate from the trust and from a financial power of attorney.

Can an agent under a power of attorney change my trust?

Only to the extent the terms of the trust and the power of attorney both expressly authorize it: the settlor's powers to revoke or amend a revocable trust may be exercised by an agent under a power of attorney only to that extent (N.J.S.A. 3B:31-43(e)), and by a guardian only with the approval of the court supervising the guardianship (N.J.S.A. 3B:31-43(f)). An agent is not thereby a successor trustee: when a trust has no remaining trustee, the vacancy is filled by the person the terms designate, then by the procedure the terms set, then by a person the qualified beneficiaries appoint by unanimous agreement, then by the court (N.J.S.A. 3B:31-49).

New Jersey Powers of Attorney & Advance Directives

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What advance directives are

Advance directives are documents you sign while you have capacity that let trusted people make decisions for you — financial and medical — if illness or injury later prevents you from deciding yourself. Without them, your family may have to ask the New Jersey Superior Court to appoint a guardian, which takes time and expense.

The core New Jersey documents

Durable power of attorney

Authorizes an attorney-in-fact to handle your finances and property. In New Jersey a power of attorney is durable when it says it is not affected by your later disability or incapacity, or that it takes effect on your disability or incapacity (N.J.S.A. 46:2B-8.2); your agent may exercise your powers to revoke or amend a trust or to distribute its property only to the extent both the terms of the trust and the power expressly authorize it (N.J.S.A. 3B:31-43(e)) — so who you name, and what you grant, matters.

Proxy directive — your health care representative (N.J.S.A. 26:2H-58)

Names an adult with mental capacity — a spouse, partner, adult child, parent, friend or other person of your choosing — as your health care representative, with alternates in order, in a proxy directive signed before two adult witnesses or acknowledged before a notary or attorney (N.J.S.A. 26:2H-58; N.J.S.A. 26:2H-56); it becomes operative when it reaches your physician or the institution and you are determined to lack capacity for a decision (N.J.S.A. 26:2H-59).

Instruction directive — your treatment wishes (N.J.S.A. 26:2H-58(b))

States your general treatment philosophy and objectives, or your specific wishes about providing, withholding or withdrawing any form of health care, including life-sustaining treatment, or both — so your representative and your doctors know what you want; it may stand alone or accompany the proxy directive (N.J.S.A. 26:2H-58(b)).

Guardian nomination & HIPAA authorization

If a guardianship ever becomes necessary, the New Jersey Superior Court decides who serves, and a written statement of whom you would want can inform that choice; a HIPAA authorization lets named people receive your medical information. Often added to round out the set.

Why you need these even with a Trust

A revocable living Trust handles the assets inside it, but it does not make medical decisions, and it doesn't cover assets you never transferred in. Advance directives fill those gaps — and together with a will and a Trust, they keep decisions in the hands of people you chose, not a court.

Putting the set together in New Jersey

Which directives you need, and how they're worded, depends on your situation, your family, and your wishes. This page is general information, not legal advice. A free role check can show you where you stand, and a New Jersey attorney can prepare directives that fit you.

General information about New Jersey law, not legal advice.

Frequently asked questions

What is a New Jersey advance directive for health care?: A proxy directive designating a health care representative — an adult with mental capacity, with alternates in order of priority — and an instruction directive stating the declarant's treatment philosophy and objectives or specific wishes on providing, withholding or withdrawing health care, including life-sustaining treatment, together or separately (N.J.S.A. 26:2H-58), signed and dated before two adult subscribing witnesses or acknowledged before a notary public, attorney or other person authorized to administer oaths (N.J.S.A. 26:2H-56). It is separate from the trust and from a financial power of attorney.
Does New Jersey have a living will statute?: Yes: the instruction directive is New Jersey's living will. It states the declarant's general treatment philosophy and objectives, or specific wishes on providing, withholding or withdrawing any form of health care including life-sustaining treatment, or both (N.J.S.A. 26:2H-58(b)); it becomes operative when transmitted to the attending physician or health care institution and the patient is determined to lack the capacity to make the decision (N.J.S.A. 26:2H-59).
Can an agent under a power of attorney change my trust?: Only to the extent the terms of the trust and the power of attorney both expressly authorize it: the settlor's powers to revoke or amend a revocable trust may be exercised by an agent under a power of attorney only to that extent (N.J.S.A. 3B:31-43(e)), and by a guardian only with the approval of the court supervising the guardianship (N.J.S.A. 3B:31-43(f)). An agent is not thereby a successor trustee: when a trust has no remaining trustee, the vacancy is filled by the person the terms designate, then by the procedure the terms set, then by a person the qualified beneficiaries appoint by unanimous agreement, then by the court (N.J.S.A. 3B:31-49).

General information about New Jersey law, not legal advice.