You’ve made a Will to direct the disposition of your Estate. You’ve signed a Power of Attorney to take care of your personal and financial activities while you are alive and if you become incapacitated. But what about your health care? Make sure you also sign appropriate health care documents, including a Proxy Directive and an Instruction Directive (in New Jersey) or a Health Care Proxy and a Living Will (in New York).

A Proxy Directive (NJ) or a Health Care Proxy (NY) is a document you can use to name someone to make health care decisions for you if you are unable to do so. It is often thought that a spouse or children can do that for you without a Directive or Proxy but that is not so. You may appoint a family member or a friend who knows your wishes regarding healthcare and is willing to make decisions for you, including accepting, refusing or withdrawing treatment if you become unable to make those decisions for yourself. This Directive or Proxy can go into effect even for a short time, for example, if you are unconscious, or heavily medicated, or if your ability to make medical decisions is otherwise compromised. Both documents should include HIPAA release language allowing the healthcare agent to have access to your medical information.

An Instruction Directive (NJ) or Living Will (NY) lets you provide guidance to your Health Care Representative or Proxy by stating whether you wish to accept or refuse medical care if you are dying or permanently unconscious. It allows you to include specific instructions in those situations as to whether you wish to be resuscitated if your heart/breathing stops, and whether you wish tube feeding. In light of the current COVID-19 pandemic, you may wish to provide different instructions for that type of situation. It also allows you to provide for organ donation. 

An Instruction Directive or Living Will can let your health care proxy, or if you have not named one, your physician, family and friends, know in advance what kind of health care decisions should be made for you if you become physically or mentally disabled and become unable to make those decisions for yourself.

A New Jersey resident may execute a Proxy Directive alone, an Instruction Directive alone, or a combined Advance Directive for Health Care that includes both the Proxy Directive and the Instruction Directive.

A New York resident may execute a Health Care Proxy alone, a Living Will alone, or both. While New York has enacted legislation recognizing a Health Care Proxy, it has not enacted legislation recognizing the validity of a Living Will. A Living Will is generally only enforceable in New York on a case-by-case basis, particularly if it can be shown to be clear and convincing evidence of the intent of the incompetent patient.

New Jersey and New York each have their own requirements with regard to execution of a Health Care Directive or Proxy and an Instruction Directive or a Living Will. Generally, you should retain the original and give a copy to your health care representative, your physician and any other appropriate family member, friend or advisor. If you go into a hospital, you will be asked if you have a Health Care Directive or Proxy and an Instruction Directive or a Living Will. It is important to make arrangements for those documents to be accessible when needed.

Your Proxy and/or Directive is only in effect if you are unable to make decisions for yourself. If you were incapacitated but regain your ability to make your own health care decisions, you are once again the decision maker. You can revoke your Proxy and/or Directive at any time, in writing, orally or by any action that indicates that you no longer want them to be effective.

Remember, if you’ve made the effort to execute a Will and a Power of Attorney, make sure you sign an Advance Directive for Health Care (Proxy Directive and Instruction Directive) in New Jersey or a Health Proxy and/or Living Will in New York. Your estate planning is incomplete without them!