Is a living will valid in all states?

Different Names, Same Purpose 

Advanced Health Care Directives, Living Will, Medical Power of Attorney … these are all terms for a document that has the same legal effect. 

Living wills were first proposed in the 1960s and grew out of estate planning, where a person makes a “will” about what happens after they die. As medicine advanced, we needed to create a method for a living person to express their wishes about their medical treatment and how their affairs are handled. Thus the “living” will was born, because it expressed the will of a person who was still living.  

For the purposes of this article, we’ll continue to call all these documents as advanced directives.  

What it does an Advanced Directive Do? 

An advanced directive has the express purpose of saying your desires about your medical care at some future date, specifically about receiving life-sustaining treatment or medical procedures.  

Advance directives are made up of two components: the “proxy directive,” and the “instruction directive.” In a “proxy directive,” a declarant can name a representative to speak for them when they cannot speak for themselves. In an “instructive directive,” a declarant specifies their wishes about certain health care treatments, specifically life-sustaining treatments. 

Binding Legal Documents 

In New Jersey, an advanced directive is a legal document that has binding legal effect, without assigning liability. So long as the physicians and the health care representatives act in good faith and in accordance with the directive, they’re not subject to criminal or civil liability. (That doesn’t mean they won’t be subject to a lawsuit; anyone can file a lawsuit.) 

So long as the instruction directive of a declarant’s advance directive is “clear and unambiguous,” it “shall be honored in accordance with its specific terms by a legally appointed guardian, if any, family members, the physicians, nurses, other health care professionals, health care institutions, and others acting on the patient’s behalf.” 

Where an instruction directive is not specific to a patient’s medical condition or the treatment alternatives available, then the physicians and legally appointed guardians must exercise “reasonable judgment to effectuate the wishes of the patient, giving full weight to the terms, intent, and spirit of the instruction directive.” NJSA 26:2H-64 

If a health care professional intentionally does not act per a directive, they are subject to discipline for professional misconduct. NJSA 26:2H-78(a). 

What happens if a person hides an advanced directive? 

This is a bad idea …  

Under New Jersey law, it is a crime of the fourth degree to deliberately withhold an advance directive without the declarant’s consent. A crime of the fourth degree is considered a felony, which can subject a person, if they plea or are found guilty, to jail for 0-18 months (about 1 and a half years), a fine up to $10,000. 

Can a New Jersey Directive be used in Pennsylvania?  

Yes, so long as the directive that was created in New Jersey meets the requirements of the New Jersey Advanced Health Care Directive Act. NJSA 26:2H-53 et seq.  

Can a Pennsylvania Directive be used in New Jersey? 

Yes, so long as the directive that was created in Pennsylvania meets the requirements of the Pennsylvania Living Will Act. 20 Pa. C.S. 5401 et seq.  

Should I make documents for all states I might visit? 

The short answer is “no.”  

The long answer is that by creating a new health care directive, you are revoking the earlier health care directive. 

You can only ever have one true health care directive at a time. If you created more than one health directive and the most recent version did not revoke an earlier version, you are creating a potential for competing health care representatives and for competing instructions and care.