By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Healthcare Directive and Living Will Attorney
Our topic today is one that I don’t like to talk about and no one reading probably wants to think about. Unfortunately, what we are discussing is based from a client that came to us. The client’s spouse was in a coma after suffering a stroke following heart surgery. The client and the spouse are in their late-50s, and the option of having a power of attorney or a guardianship application filed years earlier never crossed their minds. But due to the severity of the condition that the spouse is in, the doctors have discussed with our client the very likely possibility that there is no hope that the spouse will recover. Unfortunately, with no Power of Attorney or Healthcare Directive filled out or directives filed, doctors do not know the wishes of the patient concerning medical treatment and whether or how long life-sustaining medicines should be continued for her. Naturally they will turn to the next-of-kin for medical decisions and direction. But, what about the decision to withhold life-sustaining treatment, in essence to end a spouse’s life? Can our client as spouse be able to make that decision, or will the client need to become the spouse’s guardian to make that decision?
It turns out that in a similar case, the Supreme Court of New Jersey in Matter of Jobes, 108 N.J. 394, 420 (1987) tackled this very issue. It specifically stated that a guardianship for the purpose of making this decision was unnecessary, and that the ability to make that decision could be provided to the patient’s close family or friends. The court made it clear that courts should not be in the business of making those decisions or appointing guardians for the sole purpose of withholding life-saving treatment. Instead, it left that to others. However, the court made clear that this decision wasn’t to be made lightly, and ordered that the decision be made subject to a confirmation procedure. If the patient is in a hospital, like ours, a prognosis committee would need to be formed for the purpose of making a decision as to whether the patient has any reasonable hope of returning to a cognitive state. This option must be made so that the family can make its life-death decision.
If the patient is outside of a hospital and under 60 years old (the office of the Ombudsman makes the call for someone over 60 years of age), the family needs to secure two medical affidavits from independent neurologists stating that there is no hope for recovery and the patient is in a persistent vegetative state. If this is done, no liability will incur for making this decision. Ultimately, our client can take comfort over the fact that a judge will not get in the way of making this end of life decision, and that it will be up to the family and the team of doctors to make that decision about whether to pull the proverbial plug on the spouse.
To discuss your NJ Elder Care and Health Care Directive matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing consultations if you are unable to come to our office.