living wills

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Living Wills

LIVING WILLS

By KENNETH A. VERCAMMEN

A living will is your written expression of how you wantto be treated in certain medical conditions. Depending onstate law, this document may permit you to expresswhether or not you wish to be given life-sustainingtreatments in the event you are terminally ill or injured, todecide in advance whether you wish to be provided foodand water via intravenous devices ("tube feeding"), and togive other medical directions that impact the end of life."Life-sustaining treatment" means the use of availablemedical machinery and techniques, such as heart-lungmachines, ventilators, and other medical equipment andtechniques that will sustain and possibly extend your life,but which will not by themselves cure your condition. Inaddition to terminal illness or injury situations, moststates permit you to express your preferences as totreatment using life-sustaining equipment and/or tubefeeding for medical conditions that leave you permanentlyunconscious and without detectable brain activity.

A living will applies in situations where the decision touse such treatments may prolong your life for a limitedperiod of time and not obtaining such treatment wouldresult in your death. It does not mean that medicalprofessionals would deny you pain medications and other

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treatments that would relieve pain or otherwise make youmore comfortable. Living wills do not determine yourmedical treatment in situations that do not affect yourcontinued life, such as routine medical treatment and nonlife-threatening medical conditions. In all states thedetermination as to whether or not you are in such amedical condition is determined by medical professionals,usually your attending physician and at least one othermedical doctor who has examined you and/or reviewedyour medical situation. Most states permit you to includeother medical directions that you wish your physicians tobe aware of regarding the types of treatment you do or donot wish to receive.

All States have declared that competent adults have thefundamental right in collaboration with their health careproviders, to control decisions about their own healthcare. States recognize in their law and public policy, thepersonal right of the individual patient to make voluntary,informed choices to accept, to reject or to choose amongalternative courses of medical and surgical treatment.

WHY LIVING WILLSModern advances in science and medicine have madepossible the prolongation of the lives of many seriouslyill individuals, without always offering realistic prospectsfor improvement or cure. For some individuals thepossibility of extended life is experienced as meaningfuland of benefit. For others, artificial prolongation of lifemay seem to provide nothing medically necessary orbeneficial, serving only to extend suffering and prolongthe dying process. States recognize the inherent dignityand value of human life and within this context recognizethe fundamental right of individuals to make health caredecisions to have life-prolonging medical or surgicalmeans or procedures provided, withheld, or withdrawn.States recognize the right of competent adults to planahead for health care decisions through the execution ofadvance directives, such as living wills and durablepowers of attorney, and to have their wishes respected,subject to certain limitations.

PURPOSE OF LIVING WILLSIn order to assure respect for patients previouslyexpressed wishes when the capacity to participate activelyin decision making has been lost or impaired; to facilitateand encourage a sound decision making process in which

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patients, health care representatives, families, physicians,and other health care professionals are active participants;to properly consider patients interests both in self-determination and in well-being; and to provide necessaryand appropriate safeguards concerning the termination oflife-sustaining treatment for incompetent patients as thelaw and public policy of this State, the Legislatures haveenacted Living Will/ Advance Directives for Health CareActs.

REQUIREMENTS OF STATUTEThe advance directive for health care (Living Will)requires a writing executed in accordance with therequirements of the state law. It must be either signed anddated in front of an attorney at law or other personauthorized to administer oaths, or in the presence of twosubscribing adult witnesses. If the two adult witnesses areused, they both must attest that the declarant is of soundmind and not under undue influence. A designated healthcare representative shall not act as a witness to theexecution of the advance directive. Since this is a legaldocument, it must be executed properly to be valid underthe statute.

HEALTH CARE REPRESENTATIVEThe declarant must designate one or more alternativehealth care representatives. "Health care representative"means the person designated by you under the LivingWill for the purpose of making health care decisions onyour behalf.

WHEN DOES THE ADVANCE DIRECTIVE BECOME OPERATIVEAn advance directive becomes operative when (1) it istransmitted to the attending physician or to the health careinstitution, and (2) it is determined pursuant to the Actthat the patient lacks capacity to make a particular healthcare decision.Treatment decisions pursuant to an advance directiveshall not be made and implemented until there has been areasonable opportunity to establish and where appropriateconfirm, a reliable diagnosis for the patient which shallinclude the attending physicians opinion concerning thenature, cause, extent, and probable duration of thepatients incapacity, and shall be made a part of thepatients medical records. For additional information or tohave a "Living Will" prepared, see your attorney. In



addition, be certain your Last Will and testament is up todate.add to njlaws.com/living_wills.htm

THE LIVING WILL:Planning Ahead For Your Health Care:

KENNETH A. VERCAMMENAttorney at Law2053 Woodbridge Ave. Edison, NJ 08817

Abstracted from NJ Commission on Legal & EthicalProblems in the Delivery of Health Care732-572-0500 Legislative Study Commission Brochure

1. Introduction2. Questions and Answers3. Terms You Should4. Understand

1. Introduction:

As Americans, we take it for granted that we are entitledto make decisions about our own health care. Most of thetime we make these decisions after talking with our ownphysician about the advantages and disadvantages ofvarious treatment options. The right of a competentindividual to accept or refuse medical treatment is afundamental right now fully protected by law.

But what happens if serious illness, injury or permanentloss of mental capacity makes us incapable of talking to adoctor and deciding what medical treatments we do or donot want? These situations pose difficult questions to allof us as patients, family members, friends and health careprofessionals. Who makes these decisions if we cantmake them for ourselves? If we cant make ourpreferences known how can we make sure that our wisheswill be respected? If disagreements arise among thosecaring for us about different treatment alternatives howwill they be resolved? Is there a way to alleviate theburdens shouldered by family members and loved oneswhen critical medical decisions must be made?



Living Will:

By using documents known as advance directives forhealth care, you can answer some of these questions andgive yourself the security of knowing that you cancontinue to have a say in your own treatment. A properlyprepared Living Will permits you to plan ahead so youcan both make your wishes known, and select someonewho will see to it that your wishes are followed.

After all, if you are seriously ill or injured and cant makedecisions for yourself someone will have to decide aboutyour medical care. Doesnt it make sense to

•Have a person you trust make decisions for you,

•Provide instructions about the treatment you do and donot want, or

•Both appoint a person to make decisions and providethem with instructions.

A Few Definitions

Throughout this booklet there are four phrases. Each ofthese phrases has a special meaning when it comes toallowing you to make decisions about your future healthcare.

• Advance directive-If you want your wishes to guidethose responsible for your care you have to plan for whatyou want in advance. Generally such planning is morelikely to be effective if its done in writing. So, by an"advance directive" we mean any written directions youprepare in advance to say what kind of medical care youwant in the event you become unable to make decisionsfor yourself.

1. Proxy directives - One way to have a say in yourfuture medical care is to designate a person (a proxy) youtrust and give that person the legal authority to decide foryou if you are unable to make decisions for yourself.Your chosen proxy (known as a health carerepresentative) serves as your substitute, "standing in" foryou in discussions with your physician and othersresponsible for your care. So, by a proxy directive wemean written directions that name a "proxy" to act for



you. Another term some people use for a proxy directiveis a "durable power of attorney for health care.”

2. Instruction directives - Another way to have a say inyour future medical care is to provide those responsiblefor your care with a statement of your medical treatmentpreferences. By "instruction directive" we mean writtendirections that spell out in advance what medicaltreatments you wish to accept or refuse and thecircumstances in which you want your wishesimplemented. These instructions then serve as a guide tothose responsible for your care. Another term somepeople use for an instruction directive is a "living will.”

3. Combined directives - A third way combines featuresof both the proxy and the instruction directive. You mayprefer to give both written instructions, and to designate ahealth care representative or proxy to see that yourinstructions are carried out.

2. Questions and Answers

1. Why should I consider writing an advance directive/living will?

Serious injury, illness or mental incapacity may make itimpossible for you to make health care decisions foryourself. In these situations, those responsible for yourcare will have to make decisions for you. Advancedirectives are legal documents which provide informationabout your treatment preferences to those caring for you,helping to insure that your wishes are respected evenwhen you cant make decisions yourself A clearly writtenand legally prepared directive helps preventdisagreements among those close to you and alleviatessome of the burdens of decision making which are oftenexperienced by family members, friends and health careproviders.

2. When does my advance directive take effect?

Your directive takes effect when you no longer have theability to make decisions about your health care. Thisjudgment is normally made by your attending physician,and any additional physicians who may be required bylaw to examine you. If there is any doubt about yourability to make such decisions, your doctor will consultwith another doctor with training and experience in this



area Together they will decide if you are unable to makeyour own health care decisions.

3. What happens if I regain the ability to make my owndecisions?

If you regain your ability to make decisions, then youresume making your own decisions directly. Yourdirective is in effect only as long as you are unable tomake your own decisions.

4. Are there particular treatments I should specificallymention in my directive?

It is a good idea to indicate your specific preferencesconcerning two specific kinds of life sustaining measures:

1. Artificially provided fluids and nutrition; and

2. Cardiopulmonary resuscitation.

Stating your preferences clearly concerning these twotreatments will be of considerable help in avoidinguncertainty, disagreements or confusion about yourwishes. The enclosed forms provide a space for you tostate specific directions concerning your wishes withrespect to these two forms of treatment.

Fluids and Nutrition. I request that artificially providedfluids and nutrition, such as by feeding tube orintravenous infusion (initial one)

1. ______ shall be withheld or withdrawn as "LifeSustaining Treatment."

2. ______ shall be provided to the extent medicallyappropriate even if other "Life Sustaining Treatment" iswithheld or withdrawn.

Directive as to Medical Treatment. I request that "LifeSustaining Treatment" be withheld or withdrawn from mein each of the following circumstances: (Initial all thatapply)

1. ______ If the "life sustaining treatment" isexperimental and not a proven therapy, or is likely to beineffective or futile in prolonging my life, or is likely tomerely prolong an imminent dying process;



2. ______ If I am permanently unconscious (total andirreversible loss of consciousness and capacity forinteraction with the environment);3. ______ If I am in a terminal condition (terminal stageof an irreversibly fatal illness, disease, or condition); or4. ______ If I have a serious irreversible illness orcondition, and the likely risks and burdens associatedwith the medical intervention to be withheld orwithdrawn outweigh the likely benefits to me from suchintervention.5. ______ None of the above. I direct that all medicallyappropriate measures be provided to sustain my life,regardless of my physical or mental condition.

5. What is the advantage of having a health carerepresentative, isnt it enough to have an instructiondirective?

Your doctor and other health care professionals arelegally obligated to consider your expressed wishes asstated in your instruction directive or "living will.”However, instances may occur in which medicalcircumstances arise or treatments are proposed that youmay not have thought about when you wrote yourdirective. If this happens your health care representativehas the authority to participate in discussions with yourhealth care providers and to make treatment decisions foryou in accordance with what he or she knows of yourwishes. Your health care representative will also be ableto make decisions as your medical condition changes, inaccordance with your wishes and best interests.

6. If I decide to appoint a health care representative, whoshould I trust with this task?

The person you choose to be your health carerepresentative has the legal right to accept or refusemedical treatment (including life-sustaining measures) onyour behalf and to assure that your wishes concerningyour medical treatment are carried out. You shouldchoose a person who knows you well, and who is familiarwith your feelings about different types of medicaltreatment and the conditions under which you wouldchoose to accept or refuse either a specific treatment orall treatment.

A health care representative must understand that his orher responsibility is to implement your wishes even if



your representative or others might disagree with them.So it is important to select someone in whose judgmentyou have confidence. People that you might considerasking to be your health care representative include:

• a member of your family or a very close friend, yourpriest, rabbi, or minister, or • a trusted health care provider, but your attendingphysician cannot serve as both your physician and yourhealth care representative.

7. Should I discuss my wishes with my health carerepresentative and others?

Absolutely! Your health care representative is the personwho speaks for you when you cant speak for yourself. Itis very important that he or she has a clear sense of yourfeelings, attitudes and health care preferences. Youshould also discuss your wishes with your physician,family members and others who will be involved incaring for you.

8. Does my health care representative have the authorityto make all health care decisions for me?

It is up to you to say what your health care representativecan and cannot decide. You may wish to give him or herbroad authority to make all treatment decisions includingdecisions to forego life-sustaining measures. On the otherhand, you may wish to restrict the authority to specifictreatments or circumstances. Your representative has torespect these limitations.

9. Is my doctor obligated to talk to my health carerepresentative?

Yes. Your health care representative has the legalauthority to make medical decisions on your behalf, inconsultation with your doctor. Your doctor is legallyobligated to consult with your chosen representative andto respect his or her decision as if it were your decision.

10. Is my health care representative the only person whocan speak for me, or can other friends or family membersparticipate in making treatment decisions?

It is generally a good idea for your health care



representative to consult with family members or othersin making decisions, and if you wish you can direct thathe or she do so. It should be understood by everyone,however, that your health care representative is the onlyperson with the legal authority to make decisions aboutyour health care even if others disagree.

11. Can I request all measures be taken to sustain mylife?

Yes. You should make this choice clear in your advancedirective. Remember, a directive can be used to requestmedical treatments as well as to refuse unwanted ones.

12. Does my doctor have to carry out my wishes as statedin my instruction directive?

If your treatment preferences are clear your doctor islegally obligated to implement your wishes. unless doingthis would violate his or her conscience or acceptedmedical practice. If your doctor is unwilling to honoryour wishes he or she must assist in transferring you tothe care of another doctor.

13. Can I make changes in my directive?

Yes. An advance directive can be updated or modified inwhole or in part, at any time, by a legally competentindividual. You should update your directive wheneveryou feel it no longer accurately reflects your wishes. It isa good idea to review your directive on a regular basis,perhaps every 5 years. Each time you review the directive,indicate the date on the form itself and have someonewitness the changes you make. If you make a lot ofchanges, you may want to write a new directive.Remember to notify all those important to you of anychanges you make.

14. Can I revoke my directive at any time?

Yes. You can revoke your directive at any time,regardless of your physical or mental condition. This canbe done in writing, orally, or by any action whichindicates that you no longer want the directive to be ineffect.

15. Who should have copies of my advance directive?



A copy should be given to the person that you havenamed as your health care representative, as well as toyour family, your doctor, and others who are important toyou. If you enter a hospital, nursing home, or hospice, acopy of your advance directive should be provided so thatit can be made part of your medical records. The backcover of this brochure contains a wallet size card you cancomplete and carry with you to tell others that you havean advance directive.

16. Can I use my advance directive to make an organdonation upon my death?

Yes. You may state your wishes regarding organdonation. Also you may want to place an organ donorcard in your wallet to alert medical personnel. Any cardwill do. If you decide to make a gift of your organs uponyour death please complete the card and carry it with youat all times. For further information regarding organdonation you should contact either an organ procurementagency or your local hospital.

3. Terms You Should Understand

1. Artificially provided fluids and nutrition: The provision of food and water to seriously ill patientswho are unable or unwilling to eat. Depending on themethod used, such as insertion of a feeding tube or anintravenous line, and the condition of the patient,techniques may involve minor surgery, continuoussupervision by medical (and sometimes surgical)personnel, risk of injury or infection, and side effects.

2. C a r d i o p u l m o n a r y Resuscitation (CPR): A treatment administered by health care professionalswhen a persons heartbeat and breathing stops. CPR mayrestore functioning if administered properly and in atimely fashion and may include the use of mechanicaldevices and/or drugs.

3. Life-sustaining measures: Any medical procedure, device, artificially providedfluids and nutrition, drugs, surgery, or therapy that usesmechanical or other artificial means to sustain, restore orsupplant a vital bodily function. thereby prolonging thelife of a patient.



4. Decision making capacity: A patients ability to understand the benefits and risks of aproposed medical treatment and its alternatives and toreach an informed decision.

5. Health care representative or health care proxy: In the event an individual loses decision making capacity,a health care representative or proxy is a person who hasbeen legally designated to make decisions on his or herbehalf. A health care representative is appointed throughthe execution of a proxy directive (a durable power ofattorney for health care).

6. Terminal condition : The terminal stage of an irreversibly fatal illness, disease,or condition. While determination of a specific "lifeexpectancy" is not required for a diagnosis of a "terminalcondition a prognosis of a life expectancy of one year orless, with or without the provision of life-sustainingtreatment, is generally considered terminal.

7. P e r m a n e n t unconsciousness: A medical condition defined as total and irreversible lossof consciousness. The term "permanently unconscious"includes the conditions persistent vegetative state andirreversible coma Patients in this condition cannot interactwith their surroundings or others in any way and do notexperience pleasure or pain.

8. Persistent vegetative state: A condition of permanent unconsciousness in which thepatient loses all capacity for interaction with theirenvironment or other people. It is usually caused by aninjury to the brain. It is normally not regarded as aterminal condition and with the aid of medical care andartificial fluids and nutrition patients can survive formany years.

9. Incurable and irreversible chronic diseases: Disabling diseases such as Alzheimers disease, organicbrain syndrome or other diseases which get progressivelyworse over time, eventually resulting in death. Dependingon the disease, the patient may also experience partial orcomplete loss of physical and mental abilities. Becausethe rate at which these diseases advance may be slow,such diseases are not considered terminal in their earlystages.



10. Whole brain death: Death due to total and irreversible loss of all functions ofthe entire brain, including the brain stem. The criteria ofwhole brain death must be used to accurately determinedeath in individuals who have suffered massive or totalbrain damage but whose heart and lungs are keptfunctioning by machines. Brain dead individuals are notvegetative or in a coma. but are, in fact, dead.

11. Attending physician : The doctor directly responsible for your medicaltreatment. He or she may or may not be your regularfamily physician. Depending on your health care needsthe attending physician may consult with others in orderto diagnose and treat your medical condition, but he orshe remains directly responsible for your care.

Kenneth A. Vercammen is an Edison, Middlesex County,NJ trial attorney who has published 125 articles innational and New Jersey publications on Probate andlitigation topics. He often lectures to trial lawyers of theAmerican Bar Association, New Jersey State BarAssociation and Middlesex County Bar Association. Heis Chair of the American Bar Association Estate Planning& Probate Committee. He is also Editor of the ABA ElderLaw Committee NewsletterHe is a highly regarded lecturer on litigation issues for theAmerican Bar Association, ICLE, New Jersey State BarAssociation and Middlesex County Bar Association. Hisarticles have been published by New Jersey Law Journal,ABA Law Practice Management Magazine, and NewJersey Lawyer. He is the Editor in Chief of the NewJersey Municipal Court Law Review. Mr. Vercammen isa recipient of the NJSBA- YLD Service to the BarAward.

In his private practice, he has devoted a substantialportion of his professional time to the preparation andtrial of litigated matters. He has appeared in Courtsthroughout New Jersey several times each week on manypersonal injury matters, Municipal Court trials, andcontested Probate hearings.

KENNETH VERCAMMEN & ASSOCIATES, PCAttorney at Law2053 Woodbridge Ave.Edison, NJ 08817732-572-0500



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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney,working for injury victims and their families. By taking a hard-hitting, aggressiveapproach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over theyears I am proud to have worked on cases in various capacities, small and large. Whileobviously prior results cannot guarantee the outcome of future cases, I can guaranteethat you case will receive the same degree of dedication and hard work that went intoeach of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurancecompanies is the “soft” approach we take toward our clients. I am proud of mycompassionate staff as I am of the outstanding financial results they have achieved. Formany years, I have watched them treat our clients with patience, dignity and respect. Iwould have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Associationon Law Practice Management. This was to help insure that each of our clients is alwaystreated like a person -- not a file! We recognize that you are innocent victims and thatyou have placed your trust in us. Please understand that we understand what you aregoing through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you thesame advice we give each of our clients -- concentrate on your life, you family andyour health. We will take care of everything else. Leave all of the work and worryabout your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys.Understand that we will always to do what we believe is best for you and your case.Helping you is our job. In fact, it is our only job -- guiding injury victims like youthrough one of the most difficult times of your lives, with care and concern -- whilefighting aggressively to the limits of the law to obtain compensation and justice foreach of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, sowe can determine if we can help you obtain an injury settlement. We would welcomean opportunity to prove to you what we have proven to thousands of injured clients --

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that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN -Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about whois going to pay your medical bills, lost wages, and other damages. The last thing youwant is to be taken advantage of by an insurance company. If you don’t protect yourrights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as littleas they can. You need a New Jersey personal injury lawyer to fight for you. I amdedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize yourinsurance settlement and minimize the hassles of dealing with the insurance companies.You need an experienced and aggressive New Jersey trial lawyer with PROVENRESULTS who will fight for you. Having an experienced personal injury lawyer canmake the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big juryverdict, why would an insurance company pay you what your claim is really worth?Lawsuits can be expensive, and many people do not have the money to pursue theirclaim. In every case, I advance all costs associated with pursuing your case and I do notask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am notafraid to take your case to trial if that is what it takes to maximize the amount of moneyyour recover for your personal injury. I offer one-on-one service, and I will not handyour case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injuryclaim can be difficult and time consuming. Once I take your case, you can stopworrying about dealing with the insurance companies and focus on recovering fromyour injuries. I take care of all of the paperwork, phone calls, and negotiations, so youcan get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETHVERCAMMEN also offers a special -- “For Settlement Only” -- program. This meansthat if we are unable to settle with the insurance company, we will not go any further --unless you want us to. You have my personal assurance that there will be absolutely nopressure and no obligation.

We handle personal injury cases on a contingency fee basis.

This means: YOU DON’T OWE ME A LEGAL FEE UNLESS I RECOVER MONEY FOR YOU.



Call our office to schedule a "confidential" appointment 732-572-0500

Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen &Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantialportion of his professional time to the preparation and trial of litigated matters. He hasappears in Courts throughout New Jersey each week on personal injury matters,Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jerseypublications on criminal, elder law, probate and litigation topics. He is a highlyregarded lecturer on litigation issues for the American Bar Association, NJ ICLE, NewJersey State Bar Association and Middlesex County Bar Association. His articles havebeen published in noted publications included New Jersey Law Journal, ABA LawPractice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief ofthe American Bar Association Tort and Insurance Committee Newsletter.

Admitted In NJ, NY, PA, US Supreme Court and Federal District Court.

Contact the Law Office of Kenneth Vercammen & Associates, P.C.

at 732-572-0500for an appointment.

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