Living Will and Advance Health-Care Instruction Requirements in New Jersey

At a glance

Requirements one by one

New Jersey uses a written instruction directive

Section 26:2H-55 defines an instruction directive as a writing that states the declarant's wishes for a later time when the declarant lacks decision-making capacity. Under § 26:2H-58, it may state broad treatment philosophy, specific instructions about providing, withholding, or withdrawing health care, or both. It may stand alone; appointing a health care representative is optional.

Signing requires witnesses or an acknowledgment

Section 26:2H-56 requires the directive to be signed and dated by the declarant, or at the declarant's direction. One route uses two subscribing adult witnesses, who attest that the declarant is of sound mind and free from duress and undue influence. The alternative is acknowledgment before a notary, attorney, or another person authorized to administer oaths. An audio or video recording may supplement the signed writing but does not replace it.

Operation requires transmission and an incapacity finding

Under § 26:2H-59, the directive becomes operative only after it reaches the attending physician or health care institution and the patient lacks capacity for the particular decision. Section 26:2H-60 normally requires the attending physician's written finding to be confirmed by another physician. Confirmation may be omitted when the incapacity is clearly apparent and the attending physician and representative agree it is unnecessary.

The treatment grounds remain separate

Section 26:2H-67 permits withholding or withdrawal under four routes: treatment that is experimental, ineffective, futile, or merely prolongs imminent dying; permanent unconsciousness confirmed by a second qualified physician; a terminal condition confirmed by a second qualified physician; or a serious irreversible condition meeting the statute's burden-benefit or inhumane-treatment test. Artificially provided fluids and nutrition fall within "life-sustaining treatment" under § 26:2H-55. The same treatment section preserves the duty to provide comfort and alleviate pain.

A clear instruction can operate without an agent

If no representative is available, § 26:2H-64 makes a clear and unambiguous instruction legally operative and requires it to be honored according to its terms. If the instruction does not fit the medical condition and alternatives specifically enough, the attending physician consults the guardian, family, or others acting for the patient and uses reasonable judgment to effectuate the patient's wishes. A departure from specific terms requires clearly articulable, unforeseen factors.

Revocation can be oral, written, or shown by conduct

Section 26:2H-57 permits oral or written notice, conduct showing an intent to revoke, or a later directive. Communication may go to a representative, physician, nurse, other health professional, or another reliable witness, and is effective when communicated to a person capable of transmitting the information.

Out-of-state and foreign directives have statutory recognition

Section 26:2H-76 recognizes a directive executed under another state's law if it complies with that law or New Jersey law. A foreign-country directive receives the same treatment if it complies with the foreign country's law or New Jersey law and is not contrary to New Jersey public policy.

What trips people up

• Current wishes still control. Section 26:2H-62 says a patient who lacks decision-making capacity but clearly manifests a contemporaneous wish for medically appropriate life-sustaining measures overrides a contrary instruction.
• Pregnancy is a drafting choice, not a categorical suspension in this Act. Section 26:2H-56 allows a female declarant to state what effect the directive should have during pregnancy.
• A provider conflict leads to transfer procedure. Section 26:2H-65 requires reasonable steps toward an appropriate, respectful, timely transfer and transfer of the medical record, including the directive. A private religious institution may publish a refusal policy but must attempt accommodation and, if needed, transfer.

Common questions

Must I also appoint a health care representative?

No. Section 26:2H-58 expressly allows an instruction directive to be executed without, at a different time from, or unattached to a proxy directive.

Is notarization required if I use two witnesses?

No. Section 26:2H-56 presents the witness route and the acknowledgment route as alternatives.

Does New Jersey have a statewide advance-directive registry?

The Advance Directives for Health Care Act creates no state filing or registry step. Effect instead turns on transmission to the attending physician or health care institution under § 26:2H-59.

Statutes and sources

• N.J. Stat. §§ 26:2H-55 to -60 — definitions, execution, instruction content, operative trigger, and incapacity findings. Official P.L.1991, c.201 legislative history, P.L.2013, c.103, and P.L.2015, c.125 (accessed 2026-07-30).
• N.J. Stat. §§ 26:2H-62 to -67 — current wishes, direct effect, transfer, treatment grounds, nutrition and hydration, comfort, and pain relief. Official P.L.1991, c.201 legislative history (accessed 2026-07-30).
• N.J. Stat. §§ 26:2H-76 to -77 — interstate and foreign-country recognition and legal effect of good-faith withholding or withdrawal. Official P.L.1991, c.201 legislative history (accessed 2026-07-30).