New Jersey LGBT Law

I have been reminded several times in recent months that life is full of unexpected events. First, a client of mine very nearly died during a routine medical procedure. Second, a freak accident resulted in my becoming (temporarily) physically incapacitated. And third, I have witnessed at close range the rapid descent of a parent into irreversible mental incompetence. It reminded me that we are all vulnerable to these unexpected events that can leave us helpless and dependent on others, such as our spouse, our family members, or our friends.

Although we cannot predict when these unexpected events will fall on us, we can take important — and relatively easy — steps to avoid the unintended consequences of these events.

In March 2005, the public became aware of the dramatic struggle involving the life—and—death — of Terri Schiavo. Terry was a young woman whose heart unexpectedly stopped, resulting in extensive brain damage that left her in a persistent vegetative state. For over 5 years, Terri's husband, Michael and her parents waged a battle in the courts, in the legislature, and in the press over the question of who had the right to determine Terri's wishes regarding her medical care. Ultimately, Terri's husband prevailed, as legally he should have, the feeding tube that maintained her was withdrawn, and Terri died on March 31, 2005. Regardless of your personal feelings about Terri's situation, it is important to understand the underlying reasons this particular case played out in such a contentious manner.

Like many adults in the U.S., Terri left no written indication of her wishes regarding her medical care. As a result, the various family members fought with each other for the right to impose their interpretation of Terri's wishes. Sadly, Terri's case would long ago have been resolved had she executed a set of advanced directives — specifically, a living will and/or a medical proxy designation.

If you do not have any form of advance directive, you are not alone. By some estimates, over 70% of Americans have not executed a living will, medical proxy or financial power of attorney. Without these documents, you are relying on others — your family, your spouse — to make important decisions about your health, welfare, and even about your right to live or die. When you rely on others to make these decisions for you, their decision may not be that which you would have made yourself. When there is disagreement by family members, as in Terri's case, your failure to choose may result in a lengthy, expensive legal battle that destroys family unity.

New Jersey passed the Advance Directives for Health Care Act in 1991. The Act allows competent adults to plan ahead for health care decisions by executing a living will and medical proxy directive. It also provides direction to courts when a decision must be made on behalf of someone who, like Terri, has not left a living will. The Act also provides that, when a patient has not named a particular person as their surrogate, the court will choose an appropriate individual. Normally, the court will choose the patient's next of kin, with preference being given to the patient's spouse, if any. Once a surrogate has determined the patient's wishes, the decision is not subject to judicial review.

In 2004, the Domestic Partnership Act granted registered domestic partners the right to make medical and legal decisions on behalf of an incapacitated partner and in 2006, the civil union law granted civil union spouses the same right to make medical decisions as a married spouse. However, these rights are limited to registered domestic partners or civil union spouses; if you and your partner are simply living together, you have no legal right to make these decisions in the absence of a written directive.

For same-sex couples, there are two important lessons to be learned. First, if you are not in a registered domestic partnership or in a valid civil union, you must have a living will and medical proxy in writing naming your partner (or whomever you choose) as your agent. Second, you should have a written directive even if you are in a civil union or domestic partnership because your legal rights can only be guaranteed in states that, like New Jersey, recognize and respect your relationship.