During this Coronavirus pandemic, I am receiving a lot of calls about Living Wills and people nervous about what to expect and what to do. Here are a few helpful tips:
1. The Coronavirus can be debilitating (as we know)
The Coronavirus is tricky, since it is ubiquitous and there is no specific treatment for the disease. So if you have the virus, it will have to play itself out which could mean you get through things fine, or the disease progresses to the point where you become debilitated to some degree. It's serious stuff. Anytime there is the risk of becoming debilitated to the point you can no longer make rational and informed decisions about your own care, you need something in place (a legal document) that gives someone you trust the legal authority to make those decisions for you and to spell out your wishes in terms of medical care and end of life treatment. A Living Will (a/k/a Advance Directive) is the legal document that does this.
2. A Living Will does not mean doctors will automatically “pull the plug” on you
Many people avoid signing Living Wills because they think that by having a Living Will, they will automatically not receive life sustaining medical treatment. That is not true. The mere fact you have a Living Will says nothing about what medical treatment you will or will not receive. What's important is what your Living Will says about your wishes regarding medical care and end of life treatment. Your Living Will is nothing more than a vehicle for expressing your health care wishes. It can say you want to be kept alive no matter what happens to you, or it can say you do not want treatment once you are in a certain medical condition. The choice, of course, is yours.
3. A Living Will does not silence you
Another worry people have is that once they sign a Living Will, they believe they can no longer act for themselves. This also is not true. Until you are debilitated to the point where you are no longer capable of responding and making informed decisions for yourself, you are in full control of what happens to you despite what your Living Will says about your care. Indeed, you are free to revoke your Living Will whenever you wish. The Living Will only comes into play if and when you become disabled to the point where you are no longer able to express and act for yourself.
4. A Living Will is NOT a DNR (Do Not Resuscitate) Order
Some people confuse Living Wills with DNRs. The two are not the same. A DNR is a physician Order “not to resuscitate” someone because it is contra-indicated medically speaking (the person is likely to be seriously harmed by the act of resuscitating them). A Living Will, on the other hand, is not to be used in an emergency setting and only comes into play after a deliberative process involving at least two physicians. So for example, if you have a Living Will that states that you do not want extraordinary means to keep you alive and you pass out at the local Shoprite, the EMS folks will certainly give you CPR to try and revive you. However, if, after several days or weeks, you slip into a prolonged comatose “persistent vegetative” state, that's when your Living Will comes into play.
5. A Living Will reflects your health care wishes and appoints a health care proxy
What I call a Living Will is actually two documents in one. It is a Proxy Directive (or a Durable Power of Attorney for Health Care) where you appoint someone you trust to make medical decisions for you when you are unable to do so and an Instruction Directive (Living Will) where you spell out the type of treatment you would or would not want under certain circumstances. You can have separate documents for each of these, or they can be combined into one document. I usually join them into one document since it simplifies things.
6. You do NOT need a lawyer to do a Living Will
You do not need a lawyer to prepare a Living will (both parts) and the forms to complete a Living Will can be found here on the New Jersey Department of Health website. But like a lot of things, the forms can be confusing and ambiguous, so it helps to work with an attorney who has experience in this area to help explain the various options and implications of the form. If you wish to complete the NJDOH forms on your own and run into a snag, feel free to call our office. We are happy to help you at no charge.
7. A Living Will does NOT need to be notarized
Each state is different, but under New Jersey law, a Living Will can either be witnessed by two people OR it can be notarized. It does not need to be witnessed AND notarized. One or the other. When I prepare Living Wills for people, I do both but legally that is not required.
8. Remote notary services may be coming soon
New Jersey is close to passing legislation that will allow remote notarization of documents (called Remote Online Notarization or RON), including Living Wills in light of the present state of emergency. This will allow people to sign all their estate documents in the comfort and safety of their homes which will be very helpful given the current “stay-home” order.
Our office will be tracking this legislation and will keep our clients and the public apprised of its status and, hopefully, passage in the next week or so. We are already equipped with the software necessary to manage the entire estate planning process on-line without the need to come to our offices. We call our platform Smart Law.