Advance Health Care Directives: Taking Care of Your Personal Health is Just as Important as Taking Care of Your Business’ Health

By Michael Zoller, Esq.
mzoller@pashmanstein.com

You spend the time to ensure the health of your business.  You have plans to make sure everything runs smoothly and should those plans fail, you have contingency plans in place.  Your personal health is just as important, so you should have the same type of contingency plan in place.  And the best form of contingency is an advance health care directive.

Generally a health care directive can come in three forms: (1) the patient can leave explicit directions regarding what care they want to receive or not receive; (2) the patient can appoint someone to serve as their proxy and make necessary decisions as they arise; and (3) a hybrid where instructions are given, but a proxy is also appointed to make decisions regarding situations not covered by the instructions.  The hybrid system allows the patient the most flexibility to cover all possible situations that could arise.

Now, people may worry that if they write an advance health care directive they are giving up control over their medical care.  This is not a fear people need to have.  An advance directive only goes into effect when it is given to a health care provider and the patient is determined to lack the capacity needed to make decisions.  N.J.S.A. § 26:2H-59(a).  Additionally, there are safeguards in place to protect a patient’s interests.  The capacity determination has to be made by at least two independent doctors.  N.J.S.A. § 26:2H-60.  And more importantly, a person, even after a determination has been made that he or she lacks capacity, always has the right to suspend any directive previously given.  N.J.S.A. § 26:2H-57(d).  Additionally, it is actually a crime for a health care provider to ignore the patient’s wishes regarding the application or revocation of an advance directive, so doctors are incentivized to follow the patient’s instructions.  N.J.S.A. § 26:2H-78.

While it is important that a person stay invested in their health care, a situation may arise where the person is not in the position to make necessary decisions.  If this situation should come to fruition, an advance health care directive with a proxy is the best contingency to have in place.  While a person may feel like they are giving up control by appointing someone else to make the decisions, in truth, with all the safeguards that are in place, the hybrid advance directive is actually the best way for the patient to maintain the most control.

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