The short answer is this: in New Jersey, “advance directive” is the umbrella term that can include both a living will and a healthcare proxy. A living will states what medical treatments you want or don’t want. A healthcare proxy names someone to make decisions for you. You can have one, both, or neither, but most people benefit from having both documents in place.
At The Matus Law Group, our New Jersey estate planning attorneys have helped families throughout Monmouth County and New Jersey prepare advance directives for more than 30 years. Our Red Bank office guides clients through every step of healthcare planning, from understanding the documents to executing them properly.
This guide explains the differences between these documents, when you need them, and how to create them under state law.
At The Matus Law Group, we will walk you through every step of the process with clarity and compassion. Call us today at (732) 785-4453 to schedule a consultation with experienced Monmouth County estate planning attorney Christine Matus.
What Is an Advance Directive in New Jersey?
An advance directive is a legal document that guides your medical care if you cannot make decisions for yourself. Under the New Jersey Advance Directives for Health Care Act (N.J.S.A. 26:2H-53 et seq.), an advance directive can include two parts: an instruction directive and a proxy directive.
You decide which parts to complete. Some people create only an instruction directive. Others appoint only a healthcare representative. Many people complete both parts to ensure their wishes are known, and someone they trust can act on their behalf.
In New Jersey, an advance directive becomes operative when it has been provided to your attending physician or health care facility, and it is determined that you lack the capacity to make a particular health care decision.
Practically, this means you may be unable to understand and appreciate the nature and consequences of a particular health care decision (including benefits, risks, and alternatives) well enough to make an informed choice.
Key Takeaway: An advance directive in New Jersey can include both an instruction directive (living will) and a proxy directive (healthcare proxy). You can complete one or both parts depending on your planning needs.
What Is a Living Will?
A living will, officially called an “instruction directive” under New Jersey law, is a document where you write down your wishes about medical care. You provide instructions about what treatments you want or don’t want if you become unable to make those decisions yourself.
The instruction directive addresses situations like terminal illness, permanent unconsciousness, or serious, irreversible conditions. For example, you can state whether you want life-sustaining treatment like artificial nutrition, mechanical ventilation, or cardiopulmonary resuscitation (CPR) in specific circumstances. You can also include your general treatment philosophy, religious beliefs, and values that should guide care decisions. For a separate explanation of orders addressing resuscitation, see DNR orders explained.
This document gives your family and doctors clear guidance about your preferences. Without it, your loved ones may face difficult decisions without knowing what you would have wanted.
Key Takeaway: A living will (instruction directive) provides written instructions about the medical treatments you do or do not want in situations where you cannot speak for yourself. It addresses end-of-life care, life-sustaining treatment, and your values regarding medical intervention.
What Is a Healthcare Proxy?
A healthcare proxy, officially called a “proxy directive” in New Jersey, is a document in which you appoint someone to make medical decisions on your behalf. This person is called your healthcare representative.
Your healthcare representative steps in when you lack the capacity to make your own medical decisions. This could happen because of a serious injury, illness, coma, or advanced dementia. The person you choose should be someone you trust, who understands your values, and who can handle difficult decisions under stress.
Under N.J.S.A. 26:2H-61, once it has been determined that you lack decision-making capacity, your health care representative has authority to make health care decisions on your behalf and may give informed consent, or refuse consent, within the bounds of your advance directive and the Act. You can place specific restrictions on their authority if you wish.
Who Cannot Serve as Your Healthcare Representative?
New Jersey law limits who can serve as your health care representative in certain settings. For example:
- An operator, administrator, or employee of a health care institution where you are a patient/resident generally may not serve, unless the person is related to you by blood, marriage, domestic partnership, civil union, or adoption.
- A physician is not barred solely for being a physician, but the restriction applies if the physician would be serving as both your attending physician and your health care representative at the same time.
You should also appoint an alternate healthcare representative. This person serves if your first choice is unable, unwilling, or unavailable to act.
Key Takeaway: A healthcare proxy (proxy directive) appoints a trusted person to make medical decisions for you when you cannot make them yourself. Your healthcare representative has broad authority to consent to or refuse treatment on your behalf, and their authority is protected by state law.
Estate Planning Attorney in Monmouth County – The Matus Law Group
Christine Matus, Esq.
Christine Matus, Esq., is a Monmouth County estate planning attorney admitted to the New Jersey Bar in 1995. She graduated from Douglass College at Rutgers University with a Bachelor of Arts in Economics in 1992 and received her Juris Doctor from Touro College Jacob D. Fuchsberg Law Center in 1995. She also studied International Criminal Law and Ethics at Oxford University. Ms. Matus has practiced estate planning and real estate law in New Jersey for over 30 years, with a particular focus on estate planning for families with special needs.
Ms. Matus is a member of the New Jersey State Bar Association, the Asian Pacific American Lawyers Association, and serves on the Advisory Panel for the American Bar Association. She is an active mediator with the Superior Court of New Jersey and serves on the boards of several nonprofit organizations. Attorney Christine Matus was selected to the 2019 New Jersey Super Lawyers list, an honor given to no more than five percent of lawyers in the state. Clients value her compassionate approach, clear communication, and commitment to helping families protect their futures.
How Are Living Wills and Healthcare Proxies Different?
Understanding the differences between a living will and a healthcare proxy is essential when creating a comprehensive advance directive in New Jersey. While both documents serve to protect your healthcare wishes if you’re unable to speak for yourself, they function in distinct ways. The chart below compares their key features to help you determine which, or both, might be right for your estate planning needs.
| Feature | Living Will (Instruction Directive) | Healthcare Proxy (Proxy Directive) |
|---|---|---|
| Purpose | State your treatment preferences | Name someone to make decisions |
| What It Does | Provides written instructions about care | Appoints a healthcare representative |
| When It Applies | Terminal illness, permanent unconsciousness, serious, irreversible conditions | Any time you lack decision-making capacity |
| Scope | Limited to situations you can anticipate | Covers all healthcare decisions |
| Flexibility | Fixed instructions | Representatives can adapt to circumstances |
A living will tells doctors what you want. A healthcare proxy tells doctors who should decide for you. The living will works best for situations you can predict and plan for. The healthcare proxy covers unexpected situations that your written instructions might not address.
Many estate planning attorneys recommend both documents. The living will provides specific guidance for your representative to follow. The healthcare proxy ensures someone can make decisions in situations your written instructions don’t cover.
Can You Have One Without the Other?
Yes. New Jersey law allows you to complete either document independently. You can create a living will without appointing a healthcare representative. You can appoint a healthcare representative without providing specific treatment instructions.
However, having both documents provides the most comprehensive protection. If you only have a living will, doctors may struggle with decisions that fall outside your written instructions. If you only have a healthcare proxy, your representative may not fully understand your wishes for specific situations.
When you complete both documents, your healthcare representative follows your written instructions first. If a situation arises that your instructions don’t cover, your representative uses their judgment based on your values and what they believe you would have wanted.
When Do These Documents Become Effective?
Both types of advance directives become effective after you sign them, but they only control medical decisions when you lack decision-making capacity. Your attending physician must document that you lack the capacity to make the relevant health care decision.
As long as you can make your own decisions, you remain in control of your medical care. Your healthcare representative cannot override your current wishes. The documents serve as a safety net for situations where you lose the ability to communicate or decide for yourself.
This protection matters for several reasons. A serious car accident could leave you unconscious. A stroke might impair your ability to understand medical information. Progressive dementia could eventually prevent you from making informed decisions. Your advance directive ensures your preferences guide care even when you cannot voice them.
Key Takeaway: Advance directives become effective after you sign them but only control medical decisions when your physician determines you lack the capacity to make informed healthcare choices. You remain in control of your care as long as you can understand and communicate decisions.
How Do You Execute an Advance Directive in New Jersey?
Under N.J.S.A. 26:2H-56, New Jersey law sets specific requirements for executing an advance directive. You have two options:
Option 1: Two Adult Witnesses
- Sign and date the advance directive
- Have two adult witnesses (age 18 or older) watch you sign
- Both witnesses must attest that you are of sound mind and free of duress and undue influence
- Your designated healthcare representative cannot act as a witness
Option 2: Notarization
- Sign and date the advance directive
- Acknowledge your signature before a notary public, attorney at law, or other person authorized to administer oaths in New Jersey
You can also supplement your advance directive with a video or audio recording, though this is not required. If you travel frequently or receive care out of state, notarization may help some institutions feel more comfortable accepting the document, even though New Jersey allows either notarization or two witnesses.
What Information Should You Include?
When completing your advance directive, address the following:
- Terminal Conditions: Your wishes for care if you have a fatal illness in its final stage
- Permanent Unconsciousness: Your preferences if you permanently lose the ability to interact with your environment
- Serious Irreversible Conditions: Your instructions for conditions that are not terminal but are incurable and irreversible
You can be as specific or as general as you prefer. Some people provide detailed instructions about particular treatments. Others state general principles and values they want followed.
Key Takeaway: New Jersey requires either two adult witnesses or notarization to execute an advance directive. Your witnesses must confirm you are of sound mind and acting freely. It is advisable to have your healthcare proxy notarized if you travel out of state.
What About POLST Forms?
A Practitioner Orders for Life-Sustaining Treatment (POLST) form is a separate document that complements your advance directive. A POLST form is typically completed based on your goals of care with a clinician such as a physician, advanced practice nurse, or physician assistant. It translates your preferences into specific medical orders that healthcare providers must follow.
POLST is designed for people who are seriously ill or medically frail with limited life expectancy. POLST is not appropriate for healthy individuals as a “what if” plan. It is designed for people whose health status makes them likely to need emergency medical care in the near term. The form travels with you between care settings and gives emergency responders immediate guidance.
A POLST does not replace your advance directive. You may still need an advance directive to appoint a healthcare representative. The POLST provides specific medical orders, while your advance directive provides broader guidance and appoints someone to make decisions.
Where Should You Keep Your Advance Directive?
Your advance directive does you no good if no one can find it. Do not keep it in a safe deposit box, which may be inaccessible when needed. Instead, follow these steps:
- Keep the Original Accessible: Store the original document in a safe but easily accessible location at home
- Tell Your Healthcare Representative: Give your healthcare representative a copy and tell them where the original is kept
- Give Copies to Your Doctor: Provide a copy to your primary care physician for your medical records
- Notify Your Family: Share copies with close family members who may be involved in your care
- Take It to the Hospital: Bring a copy when admitted to a hospital or nursing facility
- Carry It When Traveling: Keep a copy with you when you travel
Most hospitals ask if you have executed an advance directive when you are admitted. Having the document readily available ensures your wishes can be followed. The Monmouth County Surrogate’s Office encourages residents to keep important personal records in a safe place where family can locate them when needed
Can You Change or Cancel Your Advance Directive?
Yes. You can change or cancel your advance directive at any time you want, as long as you are not deemed incapacitated. To change it, complete a new advance directive. Sign and date the new document and have two witnesses sign it, or have it notarized. The newer document automatically supersedes any prior directive.
To revoke an advance directive, notify your health care representative or a health care professional involved in your care (or another reliable witness), orally or in writing, or execute a new directive. You can cancel it verbally or in writing. It is advisable to notify everyone who has a copy of your advance directive so they know it is no longer in effect.
If you designated your spouse as your healthcare representative, their authority is automatically revoked upon divorce or legal separation unless you specify otherwise. The same applies if you designated a domestic partner and the partnership terminates.
You should review your advance directive periodically. Your values, health status, and relationships may change over time. Major life events like marriage, divorce, the birth of children, or a serious diagnosis are good times to revisit these documents.
Plan Ahead with Legal Help from The Matus Law Group
Healthcare planning is one of the most important steps you can take to protect yourself and ease the burden on your family. Without an advance directive, your loved ones may face difficult decisions without knowing your wishes. Family members may disagree about the right course of action. Courts may need to appoint a guardian to make decisions on your behalf.
At The Matus Law Group, our estate planning lawyers guide you through every decision and ensure your documents comply with state law. We explain your options clearly, answer your questions, and prepare documents that protect your healthcare wishes.
Call The Matus Law Group at (732) 785-4453 to schedule a consultation. Our office in Red Bank serves families across Monmouth County and New Jersey. Let us help you take the guesswork out of healthcare planning and ensure your wishes are honored with clarity and confidence.
