New Jersey Q and A

Ten commonly asked questions about PAD’s for New Jersey

Please note: the following 10 FAQs are designed to provide a quick and accessible guide to what your state’s Statutes say – or do not say – about PADs.  The FAQs do not attempt to provide a complete picture of the law in your state, nor can they take the place of legal advice.  The answers were accurate when written in December 2006.

1.  Can I write a legally-binding psychiatric advance directive (PAD)?

Yes.  The New Jersey Advance Directives for Mental Health Care Act allows you to write instructions for your psychiatric treatment in the event that you are incapable to make or communicate those instructions. The statute also allows you to appoint an agent to instruct mental health care professionals for you.  In New Jersey, this person is called a “mental health care representative”.  You may choose to create an instruction directive, to appoint a mental health care representative, or do both.  The New Jersey Department of Mental Health Services has published a standard form, which is recommended but not mandatory.

2.  Can I write advance instructions regarding psychiatric medications and/or hospitalization?

Yes.  You may use an Advance Directive for Mental Health Care to express any and all wishes you have about your mental health treatment, including refusal of mental health treatment.

3.  Does anyone have to approve my advance instructions at the time I make them?

No.  However, your Advance Directive for Mental Health Care must be signed by at least one adult witness, who must attest that you were of “sound mind” and not under duress when you created it.  If you use just one witness, that person must be someone other than a relative, operator/administrator/employee of your residential facility, or beneficiary of your estate.

4.  Can I appoint an agent to make mental health decisions for me if I become  incompetent?

Yes. In New Jersey, this person is known as a “mental health care representative”.   He or she many be any competent adult except an employee of your health or residential care provider, unless such a provider is also related to you.

5.  If I become incompetent, can my agent make decisions for me about medications, and/or hospitalization?

Yes.  You may grant your mental health care representative the  power to make any and all decisions relating to your mental health treatment or other related decisions (for example, the care of your children during any period when you are incompetent).  Alternatively, you may limit your agent’s authority to certain types of decision.  You may give your mental health care representative the power to admit you into a psychiatric facility, but to do this you must separately initial each paragraph to make your intention clear.

6.  Does my agent have to make decisions as he/she thinks I would make them (known as “substituted judgment”), or does he/she have to make them in my “best interests”?

Your mental health care representative must use substituted judgment as far as possible, after which he/she must act in your best interests.  In New Jersey, you may help safeguard substituted judgment by adding to your PAD a requirement that your mental health care representative consult other named people when making decisions.

7.  Is there any rule that says that I can only make advanced instructions, only appoint an agent, or that I must do both?

No.  You may do one, the other, or both.

8.  Before following my PAD, would my mental health care providers need a court to determine I am not competent to make a certain decision?

No.  All that is required is that your “responsible mental health care professional” (the mental health professional with primary responsibility for your care) certifies that you lack the capacity to make a particular mental health care decision.  He/she must make that determination in writing, include a statement of how long the period of incapacity is likely to last, and add the document to your medical records.  You may alternatively write your own conditions under which you want your PAD to be followed, and the PAD would go into effect at that point instead.

9.  Does the statute say anything about when my mental health providers may decline to follow my PAD?

Yes.  Your providers could decline to follow your PAD if: (1) the instructions “violate the accepted standard of mental health care or treatment”; (2) the instructions require unavailable treatment; (3) the instructions violate a court order for treatment, or other law; or (4) the instructions “endanger the life or health” of you or another person.

10.  How long does my PAD remain valid?

Your PAD remains valid until you revoke it.  You may choose whether or not you want to be able to revoke your PAD at a time when you are incompetent to make treatment choices: whichever option you choose, it is advisable to document it clearly in your PAD. The exception to this rule is that you may not modify or revoke your PAD if you are an inpatient and it is your treating mental health professional’s opinion that you are unable to understand the effect of modifying or revoking the PAD.