THIS MONTH'S NEWSLETTER
THE “LIVING WILL” A DOCUMENT NOT TO BE TAKEN LIGHTLY
Edward J. Butyrm, Esq.
Among the many tragic circumstances surrounding the recent Florida case involving the so called “right to die” issue, is that this matter has been in litigation for in excess of five years. What a sad commentary about the way we address a situation in which priorities would seem to be urgency, sensitivity and closure. Whatever one’s view of the moral, pragmatic or medical implications, the passions on all sides of the issue are apparently so intense that sight appears to be sometimes lost of the central pathetic figure caged in a body unable to enter the debate. Had there been in existence a properly drafted “living will” this unfortunate situation would most probably not have occurred.
In New Jersey, both the legislative and judicial arenas have addressed the concern of allowing life to end naturally when it appears that a medical condition offers little or no hope of that life continuing in a meaningful sense. Fortunately, our State has dealt with the issue largely without the political clash between the judiciary and legislature which is now playing out in our southern sister state.
It is generally recognized that the right to control decisions about health care lies in the first instance with the patient, if competent and able to communicate. In some jurisdictions, where a person is unable to meaningfully accept or decline life sustaining procedures, a physician may look to specified next of kin to make such decision. Our courts, however, have ruled that in the absence of a written advance directive, the Superior Court is the sole authority with power to authorize the withholding or withdrawal of life support. The Court’s decision, of course, is largely based upon evidence presented by the family. In 1991,the Legislature followed by enacting the New Jersey Advance Directives for Health Care Act, which provides guidelines for advance communication of a person’s wishes with regard to life sustaining treatment and the designation of a representative to act as a spokesman in the event the patient is unable to communicate at the time a decision is needed. The statute, by the way, expressly prohibits the practice of active euthanasia.
Although media coverage has heightened the general public awareness of the value of having an advance directive, or “Living Will”, be warned that in this very personal and sensitive area no one size fits all. Although there are a number of preprinted forms available commercially and from the health care industry or various other interested organizations, this document should not be executed without considerable and careful consideration. Often, the preferred decision maker is not a family member. Your physician, designated representative, close family members or friends and an attorney who is thoroughly familiar with this field are some of those to whom you might confide and confer when engaging in this very important aspect of your total estate plan.
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