Since the onset of the COVID-19 pandemic in March 2020, residents across the nation have been forced into lockdown amid fears that the virus could come knocking on anyone’s door at any time. Even the nation’s younger generations seemed to take the threat to heart.
A 2021 Wills and Estate Planning Survey from Caring.com found that the younger generation — between the ages of 18 and 34 — is now 63% more likely to begin estate planning, while “middle- and older-aged adults are less likely” to even have a will than they were a year ago.
Estate planning is essential at any age. While you’re never too young or too old to begin planning for the future, you certainly can be too late. Not only do you need to take steps to provide for your family and loved ones once you’re gone, but you also need to plan for your own future should you become incapacitated.
A crucial aspect of estate planning often overlooked when people are young, healthy and robust, is making future health care decisions for yourself should something unexpected happen and you end up hospitalized and unable to make medical decisions for yourself. If you can’t speak for yourself, the only person authorized to make decisions for you is your attending physician — unless you execute a living will, also known as an advance directive.
Whether you currently have a will or trust or you need to begin estate planning for the first time, our estate planning and advance directive team at the Hudson Law Firm stand ready to help you. We can review your estate planning needs, determine if what you have (if anything) is optimal, and help you create everything you need, including an advance directive.
At the Hudson Law Firm, we proudly serve individuals and families throughout Union City, New Jersey, and the surrounding areas of Jersey City, Bayonne, Hoboken, and North Bergen.
An advance directive contains two parts under New Jersey law — an instruction directive and a proxy directive. Together, they ensure that your end-of-life medical choices are honored when you are incapacitated and unable to personally instruct your physician.
In the instruction directive, you state your preferences for medical procedures should you no longer be able to state them yourself. The instruction directive permits you to preclude any medical treatment or procedure that merely prolongs death but does not improve your chance of recovery or quality of life.
New Jersey uses the term “life-sustaining treatment,” which includes any medical device or procedure that increases your life expectancy by taking over a vital bodily function. The medical device or procedure can be a drug, ventilator, surgery, therapy, or artificially provided fluids and nutrition. You cannot, however, leave instructions to expedite your death through some type of intervention, only to withhold life-sustaining treatment.
The proxy directive is a durable power of attorney naming someone to make medical decisions for you should you become unable to do so. Your health care representative could be a spouse, adult child, relative, friend, or just about anyone other than your physician.
You can — and should — also name alternate representatives in case the primary representative is unavailable or unable to perform the service. Only one representative can speak for you, whether principal or alternate. It is not a committee situation.
Your personal representative is to be guided by the wishes you express in your instruction directive, but that person’s power to speak for you is contingent upon your physician’s declaring you unable to do so, which New Jersey labels as a state of being “permanently unconscious.” The physician can also declare you to be in a “terminal condition,” triggering the proxy directive.
Some medical care facilities may refuse to share patient information and your medical history with your personal representative by citing the privacy and security provisions of the Health Insurance Portability and Accountability Act (HIPAA). This can make the personal representative’s task far more difficult.
The Middlesex County, New Jersey publication What Is a Living Will? contains language to be included in the proxy directive to overcome this possible hurdle, stating in part: “This individual is to have the same access to my health care and treatment information as I would have if I were able to act for myself.”
Your advance directive must be witnessed by two adults, notarized, or completed in the presence of an attorney in order to be valid. It can be changed at any time by simply issuing a new version. It can also be revoked by giving notice to all who have received copies of it.
Note also that your advance directive needs to be distributed to family members, your named personal representative (and any alternates), and kept in a safe, known place, so it can be taken to the hospital where you’re being treated. Your attorney should possess a copy as well.
At the Hudson Law Firm, we can meet with you, discuss your estate planning needs, review what if anything you already have in place, and then help you come up with a comprehensive set of tools to cover every eventuality. If you’re in Union City, or nearby in Jersey City, Bayonne, Hoboken, or North Bergen, call us for a consultation.