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New Jersey Advance Directive
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New Jersey Advance Directive

New Jersey advance directive rules: name a health care representative, add an instruction directive, and sign before two witnesses or a notary.

By Settled Editorial

A New Jersey advance directive is one signed writing that can hold two parts. A proxy directive names a health care representative to make medical decisions for you. An instruction directive is New Jersey's living will, and it records the treatment you do and do not want. You may sign one part, the other, or both. The New Jersey Advance Directives for Health Care Act, N.J.S.A. 26:2H-53 through 26:2H-78, sets every rule on this page.

Read this as a plain-language map of New Jersey law, not as advice about your own care. What you sign depends on your health, your family, and your beliefs, so talk it through with your physician, and with a New Jersey attorney when money and property are also in play. This page pairs with the New Jersey power of attorney guide, which covers the financial side of incapacity planning.

What a New Jersey Advance Directive Contains

New Jersey uses its own vocabulary, and the words matter when you hand the document to a hospital. An advance directive for health care is the umbrella instrument. It can hold a proxy directive, an instruction directive, or both, and any adult 18 or older with the mental capacity to sign may execute one (N.J.S.A. 26:2H-55).

  • Proxy directive. You designate an adult as your health care representative, which is New Jersey's term for a health care agent. You may name one or more alternates in a stated order of priority, direct your representative to consult named people, and set limits on what your representative may decide, including limits that apply if you are pregnant (N.J.S.A. 26:2H-58).
  • Instruction directive. You state your general treatment philosophy and objectives, your specific wishes about providing, withholding, or withdrawing any form of health care including life-sustaining treatment, or both. It does not have to be signed at the same time as a proxy directive, and it does not have to be attached to one (N.J.S.A. 26:2H-58, 26:2H-64).

One name clash confuses people who search for New Jersey estate documents. In this state a Surrogate is the elected county officer who handles probate after a death, the same officer who admits the will you sign for the other half of your plan. Your medical decision-maker is a health care representative, and the two roles never overlap.

New Jersey publishes no statutory advance directive form. Any writing that satisfies the signing rule counts. The Department of Health distributes two optional model forms drafted by the New Jersey Commission on Legal and Ethical Problems in the Delivery of Health Care: a proxy directive and an instruction directive. There is no official combined form, and the Department says outright that you can complete a directive on your own without a lawyer.

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How to Sign One in New Jersey

Here is the rule people get wrong. Execution is an either/or, not a stack of requirements. Your advance directive must be signed and dated by you, or by another person at your direction, and then either:

  • Two adult witnesses subscribe it, attesting that you are of sound mind and free of duress and undue influence, or
  • You acknowledge it before a notary public, attorney at law, or other person authorized to administer oaths (N.J.S.A. 26:2H-56).

Pick one route. Notarization is never required, and when you use it you do not add witnesses on top. Both Department of Health model forms supply only the two-witness block, so anyone choosing the notary route uses a separately drafted acknowledgment.

Two rules sit on top of that choice:

  • The person you name as health care representative may not witness the document.
  • The statute puts no heir, beneficiary, relative, or treating-provider bar on witnesses. The model forms go further than the statute and have each witness declare that he or she is 18 or older and is not named in that or any other document as your health care representative or as an alternate.

An advance directive must be a writing (N.J.S.A. 26:2H-55). New Jersey does not accept a purely spoken directive, though you may supplement a signed one with a video or audio recording. Spoken revocation is a different matter, and the section below covers it.

Choosing a Health Care Representative

You may name your spouse, civil union partner, domestic partner, adult child, parent, another relative, a friend, a religious or spiritual advisor, or any other adult with mental capacity. New Jersey lets you name one first-choice representative and then as many alternates as you want, listed in order of priority. If your first choice is unavailable, unable, or unwilling to serve, the next alternate steps in.

Three limits apply:

  • An operator, administrator, or employee of a health care facility where you are a patient or resident may not serve, unless that person is related to you by blood, marriage, domestic partnership, civil union, or adoption. A physician who works at that facility may serve, so long as the physician is not also your attending physician (N.J.S.A. 26:2H-58).
  • A physician you name as your representative may not make or confirm the finding that you lack decision-making capacity (N.J.S.A. 26:2H-60).
  • Your representative may decline to serve, and naming someone imposes no liability on that person for any part of your health care costs (N.J.S.A. 26:2H-61).

New Jersey adds no automatic pregnancy override to a directive. It leaves the question to you. A woman may write what effect her directive should have while she is pregnant, and every declarant states the limits, if any, on the representative's authority during a pregnancy.

Guardianship interacts in a way worth knowing. If a court later appoints someone else as your guardian, your health care representative keeps authority over medical decisions unless the appointment or another court order says otherwise (N.J.S.A. 26:2H-61). From the Title 3B side, a guardian of the person must act consistent with a valid advance directive unless a court revokes or alters it (N.J.S.A. 3B:12-56).

When the Directive Becomes Operative

Signing switches nothing on. While you can make your own decisions, you make them, and your physician asks you.

Your representative's authority starts when two things line up: the directive has reached your attending physician or the facility treating you, and it has been determined that you lack capacity to make the particular decision (N.J.S.A. 26:2H-59). Your attending physician states that finding in writing, with an opinion on the nature, cause, extent, and probable duration of the incapacity, and the statement joins your medical record.

One or more other physicians must confirm the finding in writing. There is one exception: no confirmation is needed when the lack of decision-making capacity is clearly apparent and the attending physician and your health care representative agree that confirmation is unnecessary. If the incapacity is attributed to a mental or psychological impairment or a developmental disability, and neither the attending nor the confirming physician has training or experience with that kind of condition, confirmation must come from a physician who does. No treatment decision under the directive may be made until there has been a reasonable opportunity to establish, and where appropriate confirm, a reliable diagnosis and prognosis (N.J.S.A. 26:2H-59, 26:2H-60).

Two reader protections sit inside that process, and most advance directive content skips both:

  • The attending physician must tell you, if you can comprehend it at all, and must tell your representative, that the finding was made, that each of you may contest it, and that each of you may use the hospital or nursing home dispute resolution process, including an ethics committee (N.J.S.A. 26:2H-60, 26:2H-66). That notice goes in your medical record.
  • A finding under this act applies only to carrying out your directive. The statute says it may not be read as a ruling that you are incapacitated for any other purpose, so it is not a guardianship judgment (N.J.S.A. 26:2H-60).

If you regain the ability to decide, you decide again, and your representative drops back to an advisory role unless you object (N.J.S.A. 26:2H-63).

Withholding or Withdrawing Life-Sustaining Treatment

Start with what the phrase covers. In New Jersey, life-sustaining treatment means any medical device or procedure that sustains, restores, or takes over a bodily function you need to stay alive, and so lengthens your expected life span. The definition names artificially provided fluids and nutrition alongside drugs, surgery, therapy, and mechanical means such as a ventilator (N.J.S.A. 26:2H-55). A feeding tube is inside the definition, so say what you want about it.

N.J.S.A. 26:2H-67 then lists four grounds. Life-sustaining treatment may be withheld or withdrawn under an advance directive when:

  1. The treatment is experimental and not a proven therapy, or is likely to be ineffective or futile in prolonging life, or is likely to merely prolong an imminent dying process.
  2. You are permanently unconscious, as determined by the attending physician and confirmed by a second qualified physician.
  3. You are in a terminal condition, under that same two-physician rule.
  4. None of the above fits, but you have a serious irreversible illness or condition and the likely risks and burdens of the treatment may reasonably be judged to outweigh its likely benefits, or imposing it on an unwilling patient would be inhumane. Here the attending physician may first consult an institutional or regional reviewing body under N.J.S.A. 26:2H-69, or seek approval from a public agency recognized by law. That consultation is advisory and never mandatory.

Two definitions carry the weight (N.J.S.A. 26:2H-55). Permanently unconscious means a total and irreversible loss of consciousness and capacity for interaction with the environment, diagnosed with reasonable medical certainty, and it covers persistent vegetative state and irreversible coma. Terminal condition means the terminal stage of an irreversibly fatal illness, disease, or condition. New Jersey fixes no life expectancy, though a prognosis of six months or less based on reasonable medical certainty counts as a terminal condition.

Care and comfort continue either way. Nothing in that section relieves physicians, nurses, and other health care professionals of the duty to give care and comfort and to ease pain. A contemporaneous wish also wins: if a patient who lacks decision-making capacity clearly expresses or manifests a wish that medically appropriate life-sustaining measures be provided, that wish takes precedence over a contrary decision by the representative and over a contrary statement in the instruction directive (N.J.S.A. 26:2H-63).

What Happens If You Never Sign One

This is where New Jersey parts company with most states, and it is the strongest reason to sign something. New Jersey law contains no ranked list of relatives who may decide for you. N.J.S.A. 26:2H-74 says the absence of an advance directive creates no presumption about a patient's wishes, and that the act does not apply to people who never executed one.

Authority then comes from one of three places:

  • A health care representative you named in a proxy directive.
  • Your instruction directive, which is legally operative on its own under N.J.S.A. 26:2H-64 when you named no representative, or when neither your designee nor any alternate is able or available to serve. Where it gives clear and unambiguous guidance, a court-appointed guardian, your family, and your treating clinicians must honor its specific terms.
  • A guardian appointed by the Superior Court, Chancery Division, Probate Part, when a patient has neither document.

New Jersey hospitals and nursing homes routinely work with the closest available relative, but that practice rests on the facility's own policy and on case law rather than on a statute you can point to. If you want a particular person to decide, name that person, and write down enough about your wishes that the people around you are not guessing. Signing a directive is also how many families keep a New Jersey guardianship off the table.

Where your representative does have to interpret, the statute ranks the evidence for them (N.J.S.A. 26:2H-63). Your instruction directive comes first. After that come your contemporaneous expressions including nonverbal ones, other reliable sources such as your representative's own knowledge of your values and goals, and reliable prior statements you made to family, friends, clinicians, or religious leaders. Only when your wishes still cannot be determined does your representative decide on your best interests.

Changing, Revoking, or Suspending Your Directive

The health care act sets no expiration date, so a New Jersey advance directive runs until you change it. N.J.S.A. 26:2H-57 gives you several routes:

  • Tell someone. Notify your health care representative, a physician, nurse, or other health care professional, or another reliable witness, orally or in writing.
  • Act on it. Any other act showing an intent to revoke the document works.
  • Sign a new one. Execute a later proxy directive, instruction directive, or both under the same signing rule.
  • Reaffirm or modify. A change uses the same execution requirements as the original.
  • Suspend and reinstate. A person who lacks mental capacity may suspend a directive by any of those means, then reinstate it later by oral or written notice.

Each of those takes hold once you communicate it to a person who can pass the information along, including your representative, your attending physician, or the nurse responsible for your care.

One New Jersey rule surprises people. Divorce or legal separation revokes the designation of your spouse as health care representative. Ending a domestic partnership revokes the designation of that partner, and ending a civil union revokes the designation of that partner, unless your directive says otherwise. Only the designation falls. Your instruction directive and any alternates you named survive. Sign a fresh document anyway so nobody at the hospital has to guess.

Two protections round this out. Executing a directive cannot change your health insurance, life insurance, annuity, or government benefits, and no provider, insurer, health service plan, or governmental authority may deny coverage or condition it on whether you signed one (N.J.S.A. 26:2H-75). Concealing, forging, or coercing a directive, or demanding one as a condition of care or coverage, is a crime of the fourth degree (N.J.S.A. 26:2H-78).

POLST and DNR Orders

Two medical orders sit next to your directive, and a clinician signs both of them, not you.

POLST. The Practitioner Orders for Life-Sustaining Treatment form, N.J.S.A. 26:2H-129 et seq., turns treatment preferences into portable orders that follow a patient from hospital to nursing home to hospice. The statute states in its own text that a POLST form does not qualify as an advance directive. It is recommended on a voluntary basis for patients who have advanced chronic progressive illness or a life expectancy of less than five years, and for anyone else who wants to further define treatment preferences. A form counts as completed and valid when it carries the patient's health care preferences, is voluntarily signed by a patient with decision-making capacity or by the patient's representative following the patient's known preferences or best interests, and carries the signature and date of the attending physician, physician assistant, or advanced practice nurse (N.J.S.A. 26:2H-134).

A patient with capacity may change or cancel a POLST form at any time. A representative may do so after capacity is lost only if the form itself granted that power, and either way the change takes hold once the clinician signs the form attesting to the request. A more recent spoken or written directive from the patient overrides a conflicting order on the form (N.J.S.A. 26:2H-135). The Department of Health publishes the New Jersey POLST form in English, including a green-background version, and in Hindi, Korean, Russian, Spanish, and Vietnamese.

DNR order. Consistent with your advance directive, your attending physician may issue a do-not-resuscitate order, and it must be entered in writing in your medical record before anyone acts on it (N.J.S.A. 26:2H-68). New Jersey runs no separate out-of-hospital DNR program. POLST is the portable order emergency crews act on.

That distinction matters when minutes count. New Jersey does not require emergency personnel, including firefighters, paramedics, ambulance and rescue crews, and emergency room staff, to withhold or withdraw emergency care in circumstances that give no reasonable chance to review a directive without endangering the patient's life (N.J.S.A. 26:2H-70). A signed POLST form is what they can follow immediately.

Mental Health Directives Follow a Different Rule

New Jersey has a second, separate act for mental health care, N.J.S.A. 26:2H-102 et seq. Do not assume the health care rules carry over.

  • It takes at least one adult subscribing witness, and the statute offers no notary alternative (N.J.S.A. 26:2H-105).
  • Your mental health care representative may not witness it, and neither may the mental health care professional responsible for or directly involved with your care when you sign.
  • A person may not serve as the sole witness if related to you by blood, marriage, or adoption, if that person is your domestic partner or shares your home, if that person is entitled to any part of your estate by will or by operation of law, or if that person operates, administers, or works at a rooming or boarding house or residential health care facility where you live. Any of those people may still serve alongside a second, qualified witness.
  • If you want your mental health care representative to be able to consent to admission to a psychiatric facility, you must initial each paragraph granting that authority when you sign the proxy directive and have it witnessed (N.J.S.A. 26:2H-107).
  • A mental health advance directive with no expiration date stays valid indefinitely, and one whose stated expiration date arrives while you lack capacity keeps running until a clinician determines you have regained it (N.J.S.A. 26:2H-106).

A Planning Sequence That Works

  1. Decide whether you want a proxy directive, an instruction directive, or both.
  2. Ask your first-choice representative before you name that person, then list alternates in order.
  3. Write your treatment wishes, including artificially provided fluids and nutrition, plus any limits on your representative and any instructions that should apply during a pregnancy.
  4. Sign and date the document before two adult witnesses, or acknowledge it before a notary or attorney. Keep your representative out of the witness role.
  5. Give copies to your representative, your alternates, your relatives, and your physicians, and hand one over when you are admitted to a hospital or nursing home. New Jersey keeps no statewide directive registry, so distribution is your job.
  6. Ask your clinician about a POLST form if you have advanced illness.
  7. Review the document after a divorce, the end of a civil union or domestic partnership, a move, or a change in your health.

A directive signed in another state is valid here if it complies with that state's law or with New Jersey's, and the same holds for one signed in a foreign country so long as it is not contrary to New Jersey public policy (N.J.S.A. 26:2H-76). One more New Jersey rule belongs on paper: a physician may not declare death on neurological criteria when there is reason to believe, from your medical record or from someone who knows your beliefs, that the declaration would violate your personal religious beliefs. In that case death is declared, and the time of death fixed, solely on cardio-respiratory criteria (N.J.S.A. 26:6A-5). Writing that belief into your directive is one way to put it on the record.

Pair this document with the rest of your plan. The New Jersey power of attorney guide covers who handles your money and property if you cannot, the New Jersey will requirements guide covers the document that speaks after you die, and the guide to avoiding probate in New Jersey covers passing assets without a court file. For every New Jersey estate and probate page, start at the New Jersey directory.

This guide is general information about New Jersey advance directives. Check anything that affects your situation with a licensed New Jersey attorney or your health care provider before you sign or rely on a directive.

Sources:

It is not legal advice.

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Settled Estate is not a law firm and does not give legal advice.

Information current as of July 29, 2026

Settled Estate is not a law firm, and this content is for informational purposes only and does not constitute legal advice. Probate laws and procedures in New Jersey can change. Consult with a qualified attorney for advice specific to your situation. Full disclaimer.

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