Guides · State guides · New Jersey
Advance Directive in New Jersey: Proxy Directive, Instruction Directive and Witnesses
New Jersey's advance directive is a proxy directive, an instruction directive, or both. Each needs two adult witnesses or an acknowledgment before a notary or attorney. Here is how they work, from N.J.S.A. 26:2H-53 and the sections after it.
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What to know
- A New Jersey advance directive must be signed and dated with two adult witnesses, or acknowledged before a notary public, attorney or other person authorized to administer oaths (N.J.S.A. 26:2H-56).
- The person your parent names as health care representative can't be a witness.
- It becomes operative once it reaches the attending physician or the health care institution and the attending physician determines your parent lacks capacity to make a particular decision.
- New Jersey's Advance Directives for Health Care Act doesn't set a ranked list of relatives who decide if there's no document; it doesn't apply to people who haven't signed one.
- Retirement Checklist puts these documents in order alongside everything else your family needs to settle.
A New Jersey advance directive is a proxy directive, an instruction directive or both, signed before two adult witnesses or acknowledged before a notary public, attorney or other person authorized to administer oaths. Under N.J.S.A. 26:2H-55, an advance directive "may include a proxy directive or an instruction directive, or both." Under N.J.S.A. 26:2H-56, it "shall be signed and dated by, or at the direction of, the declarant in the presence of two subscribing adult witnesses, who shall attest that the declarant is of sound mind and free of duress and undue influence." Alternatively, your parent can sign and date it and acknowledge it "before a notary public, attorney at law, or other person authorized to administer oaths."
What documents does New Jersey use?
New Jersey uses two documents: a proxy directive, which names a health care representative, and an instruction directive, which states your parent's wishes for health care.
| Document | What it does | Department of Health form title |
|---|---|---|
| Proxy directive | Names a health care representative to make decisions if your parent lacks decision making capacity | Proxy Directive (Durable Power of Attorney for Health Care) |
| Instruction directive | States your parent's wishes for health care, including life-sustaining treatment | Instructive Directive (Living Will) |
| Both | Your parent can sign either one or both | Two separate forms |
The New Jersey Department of Health puts it plainly: "New Jersey has two kinds of advance directives, a “proxy directive” and an “instruction directive.” It is your decision whether to have both kinds or to just have one of them." A financial power of attorney is separate; see our New Jersey power of attorney guide. For the general picture, see power of attorney vs. advance directive.
How do you sign a New Jersey advance directive?
Your parent signs and dates it in front of two adult witnesses, or signs, dates and acknowledges it before a notary public, an attorney or another person authorized to administer oaths (§ 26:2H-56). Someone else can sign at your parent's direction. The witnesses attest that your parent is of sound mind and free of duress and undue influence.
"A designated health care representative shall not act as a witness to the execution of an advance directive." The Department of Health's proxy directive form goes a step further: each witness states they are "not designated by this or any other document as the person’s health care representative, nor as an alternate health care representative." An advance directive "may be supplemented by a video or audio tape recording."
Who can't serve as the health care representative?
An operator, administrator or employee of a health care institution where your parent is a patient or resident can't serve unless related to your parent, and anyone chosen must be an adult with mental capacity. Under § 26:2H-58, your parent can name a spouse, civil union partner, domestic partner, adult child, parent, other family member, friend or religious or spiritual advisor. The limits in detail:
- an operator, administrator or employee of a health care institution where your parent is a patient or resident can't serve, unless related to your parent by blood, marriage, domestic partnership, civil union or adoption;
- a physician isn't covered by that restriction, but can't be your parent's attending physician and health care representative at the same time.
Your parent "may designate one or more alternate health care representatives, listed in order of priority," and can direct the representative to consult specific family members or friends. The Department of Health says your parent can't appoint more than one person as primary representative.
When does the health care representative start making decisions?
Under § 26:2H-59, "An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to section 8 of this act that the patient lacks capacity to make a particular health care decision."
The attending physician makes that determination in writing, and one or more physicians must confirm it, unless the lack of capacity is "clearly apparent" and the physician and representative agree confirmation is unnecessary. A physician named as representative can't make or confirm the determination. Your parent and the representative each have "the right to contest this determination."
The representative "shall seek to make the health care decision the patient would have made," and decides in your parent's best interests when their wishes can't be determined. If your parent regains capacity for a decision, the decision is theirs again. And if your parent, while lacking capacity, clearly wants life-sustaining measures provided, "that wish shall take precedence over any contrary decision of the health care representative."
Where do you get a New Jersey advance directive form?
The New Jersey Department of Health publishes two free forms on its Forms and FAQs page: a proxy directive and an instruction directive. They were developed by the New Jersey Commission on Legal and Ethical Problems in the Delivery of Health Care.
The statute doesn't print a form. The Department of Health answers "Do I need a lawyer to complete an advance directive?" with "No, you can complete an advance directive on your own." It suggests giving copies to the primary and alternate representatives, family members and physicians, and to a hospital or nursing home on admission.
What happens if your parent has no advance directive?
New Jersey's Advance Directives for Health Care Act doesn't apply, and the sections we read don't name a relative to decide. Under § 26:2H-74, "The absence of an advance directive shall create no presumption with respect to a patient's wishes," and "The provisions of this act do not apply to persons who have not executed an advance directive."
When decisions need a legal decision-maker, the path can be court guardianship. According to the New Jersey Courts, "Adult guardianship cases are filed with the county Surrogate’s Office and heard in Superior Court." See our New Jersey guardianship guide. If a guardian is later appointed for someone who does have a proxy directive, the health care representative keeps decision-making authority unless the court's order says otherwise.
How do you revoke a New Jersey advance directive?
Under § 26:2H-57, your parent can revoke a proxy directive, an instruction directive or both by:
- "Notification, orally or in writing, to the health care representative, physician, nurse, or other health care professional, or other reliable witness, or by any other act evidencing an intent to revoke the document"; or
- signing a new proxy directive or instruction directive under the same signing rules.
A revocation is effective once communicated to anyone able to pass it on, including the representative or the attending physician. Divorce matters: "Designation of the declarant's spouse as health care representative shall be revoked upon divorce or legal separation," and ending a domestic partnership or civil union does the same, unless the directive says otherwise.
What about POLST?
A POLST, or Practitioner Orders for Life-Sustaining Treatment form, is a medical order, not an advance directive; the statute says it "does not qualify as an advance directive." It's signed by your parent or their representative and by the attending physician, physician assistant or APN (§ 26:2H-134). According to the Department of Health, it "becomes part of a patient's medical records, following the patient from one healthcare setting to another, including hospital, nursing home or hospice." The form is on the Department of Health POLST page.
Frequently asked questions
Does an advance directive need to be notarized in New Jersey?
No. Under N.J.S.A. 26:2H-56, your parent can sign and date it in front of two adult witnesses, or acknowledge it before a notary public, attorney or other person authorized to administer oaths. Either way is valid. The Department of Health's answer to whether an advance directive has to be notarized is no.
Can a family member witness a New Jersey advance directive?
The statute bars only the designated health care representative from witnessing. The Department of Health form's witness statement also excludes anyone named as an alternate representative. Witnesses must be adults who attest your parent is of sound mind and free of duress. A family member can still serve as the health care representative.
Where can I get a New Jersey advance directive form?
The New Jersey Department of Health offers two free forms online: a proxy directive, which it calls a durable power of attorney for health care, and an instruction directive, which it calls a living will. The department says your parent can complete an advance directive without a lawyer. The statute itself doesn't print a form.
Who makes medical decisions in New Jersey if there's no advance directive?
New Jersey's Advance Directives for Health Care Act doesn't apply to people without one, and its sections we read don't set a priority list of relatives. When a legal decision-maker is needed, adult guardianship cases are filed with the county Surrogate's Office and heard in Superior Court. Naming a health care representative lets your parent choose instead.
Is an advance directive from another state valid in New Jersey?
Yes. Under N.J.S.A. 26:2H-76, an advance directive executed under another state's laws, in compliance with that state's law or New Jersey's, is validly executed. A directive from a foreign country is valid if it complies with that country's law or New Jersey's and isn't contrary to New Jersey public policy. The Department of Health also answers yes.
Can my parent change their mind after signing?
Yes. Your parent can revoke an advance directive by telling the representative, a physician, nurse or other reliable witness, orally or in writing, or by signing a new directive. Changes take effect once communicated. A spouse's appointment as representative ends on divorce or legal separation unless the directive says otherwise.
Getting started
An advance directive only helps if it's signed while your parent can sign it, in front of two adult witnesses who aren't the representative or before a notary or attorney, and if a copy reaches the doctor. The plan this site builds asks four questions, including which state your parents live in, and puts the steps that matter most for your family in order. It's free and takes about 90 seconds.
Related guides
Sources
- N.J.S.A. 26:2H-53 to 26:2H-78, New Jersey Advance Directives for Health Care Act: definitions (§ 26:2H-55), signing (§ 26:2H-56), revocation (§ 26:2H-57), the representative (§§ 26:2H-58, 26:2H-61), when it becomes operative (§§ 26:2H-59, 26:2H-60), no directive (§ 26:2H-74) and out-of-state documents (§ 26:2H-76).
- N.J.S.A. 26:2H-134, POLST forms: with the definitions in § 26:2H-131.
- New Jersey Department of Health, Advance Directive Forms and FAQs: the proxy directive and instruction directive forms.
- New Jersey Department of Health, What is Advance Directive?: the two kinds of advance directive.
- New Jersey Department of Health, POLST: the POLST form.
- New Jersey Courts, Adult Guardianship: where guardianship cases are filed.
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