Healthcare Directives (Living Wills) Presentation by Fredrick P. Niemann, Esq.

1. Hanlon Niemann, PC
3499 Route 9 North, Suite 1F
Freehold, NJ 07728
(732) 863-9900
fniemann@hnlawfirm.com
www.hnwlaw.com
Elder Law, Estate Planning, Asset Protection
and Veterans Benefits Attorneys
Healthcare Directives
(Living Wills)

2. Fredrick P. Niemann, Esq.
Fredrick P. Niemann offers his clients nearly 30 years of
accomplished practice in the law. He is a member of the National
Academy of Elder Law Attorneys (NAELA), the Financial Planning
Association of NJ, the Guardianship and Conservatorship
Committee of NAELA, Monmouth County Probate and Estate
Committee and the Monmouth County Chancery Practice
Committee. He is a certified will case mediator approved by the NJ
Supreme Court. Mr. Niemann is one of the select few attorneys in
NJ, accredited by the Veteran’s Administration to apply for Aid and
Attendance benefits for Veterans and their spouses. He is a highly
rated Avvo attorney and he has been listed by the prestigious
Martindale-Hubbell as “peer review” rated for 2008. A Martindale-
Hubbell rating attests to a lawyer’s legal ability and professional
ethics, it reflects the confidential opinions of the bar and judiciary.

3. Legal Wit
What do you get when you cross a librarian with
a lawyer? A lot of information you need, but
nothing you can understand.
When questioned by a prospective client as to
what a contingent fee is, the lawyer answered,
“A contingent fee to a lawyer means, if I don’t
win your case, I get nothing. If I do win your
case, however, you get nothing.”

4. Cont.
How can you tell when a lawyer is lying? His lips
are moving.
The first thing we do, Let’s kill all the lawyers
Shakespeare

5. Today’s Topic
EFFECTIVE LIFE CARE
PLANNING THROUGH A
• Living Will, Healthcare Directive
• What Is It?
• How Does It Work?
• Do You Need One?

6. HEALTH AND PERSONAL
CARE PLANNING
USING LIVING WILLS
AND
ADVANCED MEDICAL
DIRECTIVES

7. Amazing advances in medicine and
medical technology in recent decades
have given us all an ever increasing
menu of medical choices and treatments
that generations before us would never
have imagined.

8. However, prolonging years of life, does not
necessarily translate into a quality of life.
In other words, is it the quantity of life or
the quality of life that matters
most to you?
What was your answer?

9. Regardless of your answer,
How can you be sure:
• Your healthcare wishes will be respected
if you become incapacitated?
• You will be permitted to die the way you
want to die, if you are unable to speak for
yourself at the time?
• Remember the names Karen Ann
Quinlan (1976) and Terry Schiavo (1998)

10. Karen Ann Quinlan was the first modern
icon of the right to die debate. She
collapsed at a party at age 21. The
doctors saved her life but she suffered
severe brain damage and lapsed into a
“persistent vegetative state”. Her
parents/ family waged a much publicized
legal battle to remove her feeding tube
and life support machinery. They
succeeded but after the resuscitator was
disconnected, she lapsed into a coma for
almost 10 years in a nursing home before
she died on her own in 1985.

11. Terry Schiavo, she had a heart attack
and suffered severe brain damage.
Seven years later, her husband
petitioned to have her feeding tube
removed, the court authorized the
removal of her feeding tube in 2005.

12. Neither had a written healthcare directive
Neither person had a document about action to
be taken if they ever became incapacitated.
In the Quinlan case (a NJ case), the parents
believed their daughter wanted to die.
In the Schiavo case (Florida law) the husband
believed his wife would not want to be kept
alive artificially. Her parents argued that she
had no death wish and believed rehabilitation
would cause her to get better.

13. Generally, a competent person has the right
to control decisions about their healthcare.
In 1991, by congressional mandate under
the Patient Self Determination Act, most
healthcare facilities must comply with a
patient’s healthcare decision making. This
act is intended to ensure all adult patients
know the extent of their right to control
healthcare decisions through the use of
“advance directives.”

14. The term “advance directive” means, any
written instructions (i.e., living will,
healthcare directive or Power of
Attorney (POA) appointing a person to
make medical decisions, or
Any written document describing, the kind
of healthcare the individual wants or does
not want, if the person ever loses the ability
to make healthcare decisions.

15. What are the requirements for a valid
healthcare directive
Written document
Signed by a legally competent patient who
understands the purpose and effect of the
instructions being given.
Must appoint a healthcare representative
and/or contain a statement of personal
wishes regarding healthcare in the event of
loss of decision making capacity.
In 1992, NJ adopted the New Jersey
Advance Directive Healthcare Act

16. What does loss of decision
making ability mean?
• Unconsciousness
• Condition is terminal
• Proposed treatment is experimental,
likely to be ineffective or likely to merely
prolong the dying process.

17. Other Important Points to a
Healthcare Directive/Living Will
• May be revoked by oral or written
notification or by a subsequent directive.
• Becomes operative when transmitted to
physician or healthcare institution and when
a person is determined to lack capacity to
make decisions by attending/treating
physician and one independent physician
unless clearly apparent and the attending
physician and healthcare representative
agrees confirmation is unnecessary.

18. Important Points Cont.
• The designated healthcare
representative should be authorized to
receive protected healthcare information
under the Health Information
Portability Privacy Act (HIPPA)
• Medical
Privacy laws greatly reduce ability to
obtain medical records and information
about another person’s health.

19. Can a Physician / Hospital
Refuse
to Honor a Living Will / Healthcare
Directive
• Yes, but only if the action of withholding
or withdrawing treatment, etc. to sustain
life would violate a sincerely held
personal or professional conviction.

20. Can an incompetent and/ or
incapacitated person sign a
Living Will/Healthcare Directive
• No. What happens then?
Greater potential for disputes among
family members as to correct medical
decision.
If decision is not unanimous then legal
proceeding likely required.
Significant expense to family, cost more
than guardianship, decision may be
contested

21. New Jersey Supreme Court has outlined a
multi-step process to protect incapacitated
person from prolonging life sustaining
measures under defined circumstances.
First and foremost, “the goal of the decision
making for incompetent patients” should
be to determine and effectuate, insofar as
possible, the decision the patient would
have made if competent.

22. Living Will
• Is there a difference between a living will
and healthcare directive?
• Yes
• Living Will is an “instructive directive.”
It directs under what circumstances life
sustaining treatment should be withheld
or withdrawn. It does not appoint a
healthcare agent in the event of
incapacity. It is used less frequently than
a POA for healthcare.

23. Power of Attorney (POA)
for Healthcare
• A POA for Healthcare is a written
document which appoints another
individual to be his/her agent
(representative) to make medical
decisions on his/her behalf if the client
is unable to make those decisions
himself/herself due to incapacity.
Cont

24. Healthcare Power of
Attorney (POA)
(Cont’d)
• Because of appointment of agent, the
document is more flexible than the living
will and allows agent discretion to make
medical decisions, if necessary
• Agent is allowed access and interaction
to medical records and healthcare
providers, including physicians.
Cont

25. Healthcare Power of
Attorney (POA)
(Cont’d)
• The Healthcare POA can include
instructions regarding life sustaining
treatment.
• New Jersey offers immunity to health
care providers who act in good faith
based on agent’s directions.

26. Living Will and Powers of Attorney for
Healthcare can also address death
standards.
Brain vs. breath death.
Anatomical gifts
Uniform Anatomical Gift Act:
Must be explicitly authorized

27. Final Thoughts on Healthcare
Decision Making
• Share you feelings and beliefs about future
care needs:
With your designated agent
With your family, close friends, doctor,
clergy and attorney
By communicating you help them make the
right choices and reduce feelings of guilt

28. If You Fail to Have a
POWER OF ATTORNEY
and HEALTHCARE
DIRECTIVE, You are
Doomed to a Guardianship

29. Fredrick P. Niemann, Esq
Hanlon Niemann P.C.
3499 Route 9 North, Suite 1-F
Freehold, NJ 07728
732-863-9900
fniemann@hnlawfirm.com
Guardianship
Power of Attorney
www.hnwlaw.com