Do I Still Need a Living Will if I Have a Health Care Surrogate?
Incapacity planning is an important part of estate planning. A health care surrogate is a trusted person who can step up and make medical decisions on your behalf when you are not able to speak for yourself. Even if you have a health care surrogate in place, it is still a best practice to write a living will. Here, our New Jersey estate planning attorney explains why you should still have a living will even if you have appointed a health care surrogate.
What is a Health Care Surrogate?
Broadly defined, a health care surrogate is a person who you pre-authorize to make medical decisions if and when you cannot speak for yourself. The surrogate steps into the role only after a physician confirms that you lack capacity. In other words, the health care surrogate can review medical records, speak with doctors, authorize or refuse treatment, and make choices about ongoing care. The surrogate’s authority covers immediate medical needs that arise during an emergency or long-term illness. Many people choose a spouse, adult child, or close friend because the role demands trust, judgment, and emotional steadiness.
You Should Still Write a Living Will if You Have a Health Care Surrogate
A surrogate can make decisions, but a surrogate cannot read your mind. A living will provides explicit instructions about the type of care you want in specific situations. It clarifies your wishes about life-sustaining treatment, artificial nutrition, hydration, resuscitation, ventilators, and comfort care. These instructions give your surrogate a stable reference point when doctors ask difficult questions. Without a living will, the surrogate must rely on memory and assumptions. Of course, that creates stress for the surrogate and increases the risk of conflict among family members. A clear written directive also keeps disputes out of court. It provides evidence that doctors and hospitals can follow without hesitation.
Key Point: Your health care surrogate cannot override the instructions in your living will.
Know the Law: Living Wills in New Jersey
Under New Jersey law (NJ Statute 26:2H-56), a person’s right to control medical treatment through written instructions that apply when the person cannot communicate. The law requires clear expression of intent and proper execution. It also sets out how physicians should determine the conditions under which the living will take effect. New Jersey law gives providers legal protection when they follow a valid directive. It creates a predictable process and reduces the risk of hesitation or delay. Remember, a living will operates most effectively alongside your health care surrogate appointment. The surrogate follows your instructions and only exercises discretion where the document leaves room for judgment. The combined structure gives you two layers of protection:
- Well-written guidance that removes ambiguity; and
- A trusted person who can navigate situations the document does not cover.
Call Our New Jersey Estate Planning Lawyer for Immediate Help
At Poulos LoPiccolo PC, our New Jersey estate planning attorneys put clients first. If you have any questions about living wills and/or health care surrogacy, we are here as a resource. Contact us today to set up your completely confidential case review. With an office in Monmouth County, we provide estate planning services throughout all of New Jersey.
Source:
law.justia.com/codes/new-jersey/title-26/section-26-2h-56/
