A “living will” is one form of “advance directive” which may include a “proxy directive” (designating a person to make decisions about treatment when the “declarant” lacks the capacity to do so) or “instructive directive” (which provides specific instructions regarding health care when the declarant lacks decision-making capacity). (NJSA 26: 2H-55). The New Jersey Advance Directives in Heath Care Act in NJSA 26:2H-60 contains details regarding how determinations concerning incapacity to make health care decisions are to be made. The trigger for delegated decision-making authority must be documented and confirmed by physicians, but a treating physician must transfer care of a patient who is unwilling to follow the directions of the decision-maker regarding treatment once the patient’s capacity or condition warrants it.

Patients should have freedom of choice concerning life-sustaining treatment or the types of treatment desired or not wanted by the patient. And, of course, the patient usually delegates the decision-making to a close family member he or she loves and trusts—frequently the beneficiary or a beneficiary of his or her estate. Accordingly, although perhaps not consciously or purposely, there may develop a conflict between the financial interests of the designated “health care representative” under a proxy directive, and the best medical interests of the patient.

We recognize that the statute details the obligations of the attending physician before certification of incapacity for purposes of implementing an “advance directive.” But, particularly in a proxy situation, the ultimate decision of life or death comes from the proxy, and where the patient may not have enough resources (and inadequate insurance coverage or long-term care protection), a conflict may arise.

We call upon the Legislature to amend the statute to require that a person executing an advanced directive with a proxy designation separately certify that it is his intent to allow the proxy to act, including with regard to life and death decisions, notwithstanding that the proxy may have a conflict of interests as a beneficiary. This might protect against decision-making where the delegated decision-maker benefits, or may benefit, economically by the death of the person who executes the directive. In most cases, compassion and true love and concern for the patient’s wishes shall be respected, and physicians do have to certify the condition warrants delegation independent of the role of a hospital review board if the patient is hospitalized. But the cost of assisted living and long-term care is so great in this day and age that it can in some cases wipe out the inheritance of the decision-maker, which could affect his or her decision-making.