As all of you are aware, preparing Wills and estate plans are common methods employed to carry out an individual's intent as to the disposition of his or her property utilizing available planning tools so as to lessen the burden of taxation. Both are effective means to express an individual's desires and wishes when, due to death, he or she is no longer able to do so.
Recently, with the development of advanced medical technology, incapacitated persons can be kept alive almost indefinitely with the use of such devices as respirators, cardiac pumps, devices to control body temperature and the like. These devices can be used for saving lives and restoring normal activity but can also constitute a procedure for prolonging comatose life.
Individuals' attitudes towards utilizing such life sustaining technology in the event of incompetence or incapacitation vary. Some would prefer to save the expense and anxiety created by using such life sustaining measures when they are hopelessly ill. Others would not. However, it is fair to say that most people would like to personally make the decision one way or the other, rather than to leave such critical and personal decisions with family members, doctors, health care institutions, or others. The issue is whether a person can effectively express his or her desires with respect to the use or non-use of such technology.
There are two means, which are growing in popularity and towards which the courts are looking with increasing approval, that may be used to express an individual's wishes and attitudes towards appropriate health care in the event one should become incapacitated or otherwise unable to express his or her wishes. One is the preparation of a durable Power of Attorney which, in additional to its customary role of providing for the management of the property of an individual who later may become incompetent, can also be fashioned to reflect a person's wishes on appropriate health care measures. This durable Power of Attorney for health or medical care may enable a competent individual to designate a substitute or proxy health care decision-maker in the event he or she becomes incapacitated.
Another pre-illness directive for health care may be a "living will" which refers to written instructions concerning health care in the event of a terminal illness or an irreversible condition. It usually directs that if death is imminent, the fatal illness should be permitted to take its natural course with no intervention to prolong the process of dying. Also common is a direction that only palliative care (make more comfortable, reduce pain, etc.) be provided.
Although neither a "durable Power of Attorney for health care" nor a "living will" is legally binding in New Jersey, both have been sanctioned by the New Jersey Supreme Court as "clear and convincing evidence" of an individual's wishes and may be implemented by doctors in good faith with no need of additional court proceedings. Accordingly, their use should not be overlooked.