 May/Summer 2001 (XXXIX 3) |
hether you reside in New Jersey, Pennsylvania, or elsewhere, basic planning should include a Will, a Power of Attorney, and an Advance Directive for Health Care (often called a “Living Will”). The will takes effect at death. The Power of Attorney and the Advance Directive are useful for persons who are disabled but not dead; those documents become ineffective at death.
What we call Power of Attorney is typically concerned only with financial matters. New Jersey powers of attorney should refer to N.J.S.A. 46:2B-11, which authorized specific banking transactions, making it easier for banks to accept and rely upon the document. The document must be signed and acknowledged as required by N.J.S.A. 46:14-2.1. It should be durable (“validity not affected by the disability of the principal”). Recent legislation clarifies that the attorney-in-fact is a fiduciary, acting “solely for the benefit of the principal,” required to “maintain accurate books and records,” and to “render an accounting” upon demand of the principal, his guardian or heirs. Compensation for services may be awarded.
The Advance Directive may also contain a power of attorney, appointing a decision-maker and authorizing the decision-maker to obtain and pay for medical services. The second element of an advance directive is typically “living will” language – a statement that there are limits to what the principal is willing to endure or pay for. The living will portion of the document may consist of statements of general philosophy and general goals, relying upon the decision-maker to implement them, or it may consist of a long list of medical procedures with a “yes” or “no” choice for authorization. This writer – not being a doctor, realizing that the list of medical procedures is likely to be both incomplete and outdated, and skeptical of our ability to predict future circumstances and our responses – prefers to set general goals and rely upon the good sense of the decision-maker. However, this also requires considering whether the burden of such decisions should be placed upon the nearest or most sensitive of kin.
Even the best planning does not always ensure the desired results. Emergency medical personnel (probably unaware of the existence of an Advance Directive) cannot immediately determine if a stroke victim has had a “minor” stroke or a massive one, nor can they predict the extent of recovery. Their job is to stabilize the patient; only later will the effects and degree of recovery become known. Medicine is still art as well as science, so we must make difficult decisions with imperfect knowledge. It is to be expected that doctors and decision-makers will err on the side of prolonging life. And that is no doubt what we would do for ourselves.
While there are similarities in the laws of different states applicable to these documents, there are also some differences. Thus, it is best to review them if you relocate to another state.
Richard DeCou, attorney at law
Moorestown Meeting (NJ)
Last modified: Wednesday, February 18, 2004 at 08:18 AM