New Jersey Advance Directive: Forms, Signing, and Effect

A New Jersey advance directive is a written document, authorized by the state’s Advance Directives for Health Care Act, that either names someone to make medical decisions for you, records the treatments you want or refuse, or does both. You can use the free forms published by the New Jersey Department of Health, and the document is legally binding once you sign it in front of two adult witnesses or a notary. It only takes effect if a physician determines you can no longer make your own medical decisions. Getting the signing details right matters more than most people realize, because a technical mistake can leave the entire document unenforceable at the worst possible moment.

The Three Forms You Can Choose

New Jersey recognizes three formats, and the first choice you make is which one fits your situation.

A proxy directive, sometimes called a health care power of attorney, names a specific person to make medical decisions if you lose the ability to decide for yourself. That person only steps in after your attending physician determines you lack decision-making capacity, and they are required to base decisions on what you would have wanted rather than on their own preferences.

An instruction directive, commonly called a living will, is a written statement of your treatment preferences. You can lay out which treatments should be given, withheld, or stopped under specific conditions such as a terminal illness or permanent unconsciousness.¹ The official state form walks you through the main scenarios, but your instructions can be as broad or as detailed as you want.

A combined directive merges both into one document, naming a representative and providing detailed treatment instructions. This is the most common choice because it gives your representative concrete guidance rather than forcing them to guess. All three forms are available on the Department of Health website.²

Choosing a Health Care Representative

Your health care representative is the person who will stand in an emergency room or ICU and speak for you. You can appoint a spouse, domestic partner, parent, adult child, friend, religious advisor, or any other adult, and you should also name at least one alternate in case your first choice is unavailable when the time comes.²

Certain people are barred from the role. You cannot appoint your attending physician, or the operator, administrator, or any employee of a health care facility where you are a patient, unless that person is related to you. A physician who works at your facility can serve only if they are not your attending physician.² These restrictions exist to prevent conflicts of interest between the people providing your care and the person directing it.

Pick someone who understands your values and will hold firm even if other family members disagree. Have a direct conversation about what you want and don’t want before you sign anything.

What to Put in the Instruction Portion

The instruction section is where you get specific. The core decisions involve life-sustaining treatments: mechanical ventilation, CPR, and artificial nutrition or hydration delivered through tubes. For each, you can consent, refuse, or authorize a time-limited trial. The state form guides you through the clinical scenarios where these decisions arise.¹

State law lets you withhold or withdraw life-sustaining treatment in several circumstances: when you are permanently unconscious, when you have a terminal condition, when treatment would only prolong imminent death, when treatment would likely be ineffective, or when you have a serious irreversible condition and the treatment would cause more harm than benefit.² You can address each scenario differently. Some people accept ventilation for a terminal illness but refuse it if they are permanently unconscious.

Beyond life support, you can include instructions about antibiotics, pain management, and palliative sedation. These come up in a wider range of situations than full life support decisions and are worth thinking through.

Pregnancy Instructions

New Jersey specifically allows a female declarant to include instructions about what effect the directive should have during pregnancy.³ A directive without pregnancy instructions leaves ambiguity that physicians and family members may resolve differently than you would.

Organ and Tissue Donation

You can state your organ and tissue donation preferences in the directive itself. New Jersey hospitals are already required to notify organ procurement organizations when a patient’s death is imminent, regardless of whether the patient has a directive.⁴ Documenting your wishes in the directive, alongside any donor designation on your driver’s license, removes doubt about your intentions.

Signing Requirements

Execution is where good directives fail. A technically defective document is just a piece of paper, and you will not be in any condition to fix it when it matters. New Jersey law requires you to sign and date the document in the presence of either two adult witnesses or a notary public (or attorney).³

If you use witnesses, both must be at least 18 and able to confirm that you were of sound mind and acting without pressure. Your designated health care representative cannot serve as a witness.³ A neighbor, coworker, or friend who is not named in the document works fine.

If you prefer notarization, New Jersey sets the notary fee at $2.50 per notarial act for non-real-estate transactions. Higher fees you may see listed elsewhere apply to real estate transfers and mortgage transactions, not to advance directives.⁵ Most banks offer free notary service to account holders during regular business hours.

When the Directive Actually Takes Effect

Your directive sits dormant until your attending physician determines that you lack the capacity to make your own medical decisions. For decisions to withhold or withdraw life-sustaining treatment in cases of terminal illness or permanent unconsciousness, the official state form requires confirmation by your attending physician plus at least one additional physician who has personally examined you.¹ Until that determination happens, you remain in charge of your own care regardless of what the directive says.

Your representative’s authority activates only after this capacity determination. The representative must act within the bounds of the directive and in good faith.⁶ Where the directive gives specific instructions, the representative follows them. Where it is silent, the representative decides based on what you would have wanted, drawing on prior conversations and the values you expressed.

Changing or Revoking Your Directive

You can revoke your directive at any time while you have capacity. New Jersey makes this deliberately easy: you can revoke it orally or in writing by notifying your representative, your physician, a nurse, another health care professional, or any reliable witness. You can also revoke it through any action that shows you intend the document to no longer apply, or by executing a new directive that replaces the old one.⁷

Two automatic revocation triggers catch people off guard. If you named your spouse as representative, a divorce or legal separation automatically revokes that designation. The same applies to a domestic partner or civil union partner if that relationship ends. Your remaining directive instructions stay valid, but you no longer have a representative unless you named an alternate.⁷

Even a patient who lacks mental capacity can temporarily suspend a directive by communicating that intent to a physician, nurse, or other health care professional, and can reinstate it the same way. This protects patients who fluctuate in and out of capacity during an illness.⁷

To change your directive, the cleanest approach is to execute a new one. An amendment requires the same signing formalities as the original, so you save no effort by amending, and a fresh document eliminates confusion about which version controls.

Storing and Sharing Copies

New Jersey does not require you to file your directive with any court or state registry. It is effective as soon as it is properly signed. Keep the original somewhere accessible at home rather than in a bank safe deposit box, which will likely be locked during a late-night emergency.

Copies carry the same legal weight as the original. Distribute them to:

Your health care representative and alternates, so they can present a copy when assuming their role.
Your primary care physician and specialists, with a request that a copy be scanned into your electronic medical record.
The hospital admissions department during any scheduled procedure, so it is in the system before anything happens.

Your attending physician is required by law to ask whether you have a directive, note its existence (or absence) in your medical record, record the name of your representative, and attach a copy.⁸ Don’t rely on them to do this unprompted. Bring it up yourself and confirm the copy made it into your chart.

A wallet card can alert emergency responders that a directive exists. Include your name, a statement that you have a directive, your representative’s name and phone number, and your physician’s contact information.

What Happens If a Provider Objects

A physician may decline to participate in withholding or withdrawing life-sustaining treatment based on sincerely held personal or professional convictions. Declining does not mean your directive gets ignored. The physician must inform you or your representative, notify the appropriate institutional official, transfer your care to a willing provider in a timely and respectful manner, and ensure you are not abandoned.⁸

The same right to decline, with the same obligation to facilitate transfer, applies to nurses and other health care professionals. No provider can simply refuse and walk away. If a transfer becomes necessary, the attending physician must ensure your medical records, including your directive, follow you to the new provider.⁸

Where a Directive Stops and POLST Begins

An advance directive generally does not apply to emergency care. That surprises people, so it matters. New Jersey also offers a Practitioner Orders for Life-Sustaining Treatment (POLST) form, which is a set of actual medical orders signed by both you (or your surrogate) and a health care provider, intended for people with serious illness or frailty.⁹ POLST orders apply to emergency care. When paramedics arrive, they follow medical orders, not preference documents.

The two documents complement each other. The advance directive covers the big picture across your entire life; a POLST translates your wishes into the clinical orders that emergency responders act on. If you have a serious or progressive illness, ask your physician about completing a POLST alongside your directive.

1
New Jersey Department of Health. Instruction Directive
2
New Jersey Department of Health. Advance Directive Forms and FAQs
3
Justia Law. New Jersey Code 26:2H-56 – Advance Directive, Execution, When Operative, Revocation
4
Justia Law. New Jersey Code 26:6-89 – Notification of Organ Procurement Organization
5
New Jersey Department of Treasury. NJAC 17:50-1.18 Fees for Notarial Services
6
Justia Law. New Jersey Code 26:2H-61 – Authority to Make Health Care Decisions
7
Justia Law. New Jersey Code 26:2H-57 – Proxy Directive, Instruction Directive, Revocation
8
Justia Law. New Jersey Code 26:2H-62 – Attending Physician Obligations
9
New Jersey Department of Health. Practitioner Orders for Life-Sustaining Treatment (POLST)