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Tuesday, November 07, 2017


Unsigned Will rejected here


Argued June 8, 2017 – Decided September 6, 2017

Before Judges Hoffman, O'Connor and Whipple.

On appeal from Superior Court of New Jersey, Chancery Division, Monmouth County, Docket No. P-283-13/S#236312.
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion  is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.



This consolidated appeal concerns the distribution of the estate of Dr. Evan Merritt London (decedent). The appellants are plaintiffs Patricia London Thieffrey (Patti) and Mark London (Mark), decedent's niece and nephew, and Thomas Arnold (Thomas), decedent's long-time friend. These parties appeal from separate summary judgment orders of the Chancery Division, Probate Part, dismissing plaintiffs' verified complaint and Thomas's counterclaim. Having thoroughly reviewed the record and applicable law, we affirm. 
We begin by reciting the relevant procedural history. On August 29, 2013, plaintiffs filed a two-count verified complaint, seeking in count one a judgment declaring that an unsigned trust prepared in May 2013 "is valid and enforceable," and "supersedes" a trust decedent signed in 2012. In count two, plaintiffs sought a declaration that Thomas was entitled to one of decedent's two IRA accounts, and that they were entitled to the second.
The New Jersey Attorney General filed an answer and affirmative defenses to plaintiffs' complaint, on behalf of various charitable organizations that would be impacted by the unsigned 2013 trust. Shortly thereafter, respondents NYU Langone Medical Center (NYU Langone), Simon Wiesenthal Center, the Salvation Army, B'nai B'rith Foundation of the United States (B'nai B'rith), and Jewish Family and Children's Service of Greater Monmouth County (Jewish Service) (collectively, charitable organizations), filed an answer and affirmative defenses. Respondent Wells Fargo Bank, N.A. (Wells Fargo Bank), as trustee of decedent's 2012 trust, also filed an answer and affirmative defenses. Thomas filed an answer, counterclaim, and cross-claim, seeking a declaration that he was entitled to three of decedent's private bank accounts, including one of decedent's IRAs. 
On June 20, 2014, Wells Fargo Advisors, LLC (WFA), the custodian of decedent's IRA accounts, filed an intervenor answer, affirmative defenses, and a complaint for interpleader, requesting the court determine the beneficiaries of the IRA accounts. In July 2014, the charitable organizations and Wells Fargo Bank filed a joint motion for partial summary judgment on count one of plaintiffs' complaint. Plaintiffs then filed a cross-motion for summary judgment on count one. On October 31, 2014, the court granted respondents' motion and entered an order dismissing count one of plaintiffs' complaint.
Following additional discovery, the charitable organizations again moved for summary judgment, seeking to dismiss count two of plaintiff's complaint and the counterclaim filed by Thomas. WFA also moved for summary judgment on its interpleader complaint, and plaintiffs filed a cross-motion for summary judgment. On May 12, 2015, after oral argument, the court granted respondents' motion and entered an order dismissing count two of plaintiffs' complaint and Thomas's counterclaim.
This appeal followed. Given the nature of the record, we first address the issues pertaining to count one, and then we separately address the issues concerning count two. 
We discern the following facts relating to count one, viewed in the light most favorable to appellants, the non-moving parties. Ramos v. Flowers, 429 N.J. Super. 13, 16 (App. Div. 2012).
Decedent enjoyed a long career as a medical doctor, specializing in ophthalmology. He married twice but produced no children from either marriage. However, decedent maintained a friendship with Thomas for over forty years, and Thomas certified he was decedent's close companion. Toward the end of decedent's life, Thomas saw him on a daily basis, serving as his "driver, deliveryman, confidante, business associate, [and] adviser." 
Plaintiffs are the children of decedent's once-estranged brother, and were decedent's next closest relatives. According to their complaint, decedent referred to plaintiffs as "his only family." 
In the summer of 2012, decedent became ill from complications of prostate cancer and a colostomy, resulting in a lengthy stay at Riverview Hospital (Riverview) from June 16, 2012 through August 24, 2012. Following this stay, at the urging of plaintiffs and Thomas, decedent agreed to move into the Brandywine assisted living facility (Brandywine). Decedent passed away on May 24, 2013, after being rushed from Brandywine to the Riverview emergency room. 
Decedent executed several wills and trusts over his lifetime, the first on July 14, 1998 (1998 Will). The 1998 Will devised a large portion of decedent's estate to plaintiffs. 
Over ten years later, in the spring of 2010, decedent hired attorney Stephen J. Oppenheim to handle his estate planning matters. Oppenheim testified at deposition that he recommended decedent "use a revocable trust as the primary vehicle to dispose of his [e]state[,] with a beneficiary designation for his IRA[,]" in addition to creating a "pour-over" will.1 He noted that in 2010, decedent's estate was valued at approximately six million dollars. 
On July 9, 2010, decedent executed a trust document, titled "Trust Agreement[,] The Merritt E. London Trust" (July 2010 trust). This trust provided for a one-time $100,000 bequest to each plaintiff, and created trusts for each plaintiff, with each trust funded by 40 percent of the residual estate. It further provided for a $25,000 bequest to decedent's housekeeper, and $10,000 bequests to Thomas and sixteen other friends and relatives; the trust further provided for bequests to three listed charities, and bequeathed 10 percent of the residual estate to six charitable organizations. 
Two years later, during his hospitalization at Riverview in the summer of 2012, decedent executed several revised trust documents, each time altering the amounts devised to plaintiffs and certain charitable organizations. First, on June 22, 2012, decedent executed a will, beneficiary designation, and trust (June 2012 Trust), which lowered the one-time bequests to plaintiffs to $50,000 each. It further lowered the percentage of their residual estate trusts to 25 percent each and divided 40 percent among six named charitable organizations. It also granted Thomas a $75,000 specific bequest. 
Shortly thereafter, on July 7, 2012, decedent executed a new trust agreement (July 2012 Trust), will, beneficiary designation, and power of attorney. In relevant part, the July 2012 Trust eliminated the one-time specific bequests to plaintiffs and reduced the amount they would receive in trust to $600,000 each; it also granted decedent's housekeeper a $500,000 trust. The remainder was to be placed in trust for named charitable organizations. Thomas retained his $75,000 bequest. 
Next, on August 17, 2012, Oppenheim met with decedent at Riverview, where he executed a new will, trust agreement, and beneficiary designation. The trust, dated August 21, 2012 (August 2012 Trust), increased the amount for plaintiffs to $1,000,000 each, in trust, and retained the housekeeper's trust. It devised the remainder as 19 percent each to the Riverview Medical Center Foundation, NYU Langone, the Simon Wiesenthal Center, the Salvation Army, and Jewish Service, and 5 percent to B'nai B'rith. It further maintained a $75,000 specific bequest for Thomas. 
On October 4, 2012, decedent executed a document revising the August 2012 trust, titled "The Merritt E. London Trust[,] First Amendment of Trust Agreement." (October 2012 Amendment). The October 2012 Amendment removed Riverview as a beneficiary of the residual estate, instead dividing 95 percent equally to the remaining organizations and continuing 5 percent to B'nai B'rith. 
Several months later, on April 5, 2013, Oppenheim wrote to decedent and enclosed copies of several pages of the July 2012 Trust. Oppenheim noted that these pages listed "the names of [decedent's] beneficiaries, the amounts provided for each of them, and for [decedent's] [t]rusts for the benefit of [his housekeeper], Patti, and Mark, and the [o]rganizations' shares of any distribution provided for them." At deposition, Oppenheim could not recall why he sent these documents to decedent, but noted it must have stemmed from "a conversation with somebody." 
Decedent's Wells Fargo financial advisor, Anthony Frigoletto, testified at deposition that approximately one month later, on May 11, 2013, he met with decedent at Brandywine to discuss changes to his estate plan, which he marked on a copy of the July 2012 Trust. These changes involved granting decedent's brother a $100,000 bequest, granting Riverview 28 percent of the residuary reserved for the organizations, and decreasing NYU Langone's share to 10 percent. Frigoletto faxed Oppenheim a copy of the marked document on May 13, 2013, informing him decedent "still wants changes." 
Oppenheim then met with decedent at Brandywine on May 15, 2013. According to Oppenheim's memorandum of that date, he and decedent discussed changes to his trust agreement, which included giving "specific amounts to the beneficiary organizations" and "divid[ing] the balance of the trust fund between Patti and Mark." Oppenheim made notations of these changes on an unexecuted copy of the August 2012 Trust. At deposition, he described the meeting as follows:
I sat down with [decedent], and I had a copy of the last trust agreement with me. I knew what he wanted. Generally[,] he wanted to talk to me about changes. And we went over that trust agreement paragraph by paragraph. And he told me about the changes that he wanted to make. And I made little notes on my copy of the trust agreement. 

Oppenheim affirmed he was "absolutely certain" that his notations were the changes decedent described at their May 15 meeting. He thus prepared a new trust agreement (May 2013 Trust), granting eleven specific bequests to eleven friends and relatives, including $50,000 for Thomas and $100,000 for decedent's brother. The trust further devised the residual estate to Patti and Mark in equal shares, replacing the charities previously designated, minus the $500,000 trust fund still allocated to his housekeeper. The revised plan further granted specific bequests to the following charities: $10,000 to the United Way of Monmouth County, $10,000 to the Foodbank of Monmouth and Ocean Counties, $70,000 to Riverview, $40,000 to NYU Langone, $40,000 to the Simon Wiesenthal Center, $40,000 to the Salvation Army, $40,000 to Jewish Service, and $25,000 to B'nai B'rith. 
Oppenheim testified he hand-delivered an unsigned copy of the May 2013 Trust to Brandywine at 8:00 a.m. on May 22, 2013, leaving it with a member of the staff for delivery to decedent. Although he could not remember the exact date, Oppenheim recalled a subsequent phone conversation where decedent said he received the document and "was going to look at it"; however, Oppenheim added he did not believe decedent did so. 
Oppenheim further stated he did not know whether decedent was going to sign the May 2013 Trust, because he "expected [decedent] to review it and to let [him] know whether he approved of it. And if he did, then [they would] have a signing ceremony." When asked if the document he dropped off "could have been executed[,]" Oppenheim answered, "Not really. It could have been executed if the execution was accompanied by witnesses and by a Notary and if we had done it in the formal way." He added, "If [decedent] approved it, we would not have had to make any change. I might have prepared another document . . . or I might not have. But that certainly could have been used, yes." 
Oppenheim also attached a cover sheet to the May 2013 Trust, which he testified summarized the major changes "in a very abbreviated form." The cover sheet stated that if decedent found the May 2013 Trust satisfactory, Oppenheim would prepare a will, new beneficiary designation, and power of attorney, and help decedent execute the documents. Oppenheim asked decedent to call him "after you complete your review of the new Trust Agreement." 
Frigoletto testified decedent called him after he received the new document, requesting he "come down there and see him because he wanted me to read something with him, the new draft, and he wanted my opinion with what was written." Frigoletto then called Oppehnheim to obtain a copy of the trust. Frigoletto received an email from Oppenheim, dated May 22, 2013, containing a copy of the May 2013 Trust and advising that decedent "decided recently that his niece and nephew should receive the biggest part of his estate, free of trust, instead of the organizations named by his current Trust Agreement." After receiving this email, Frigoletto again spoke to decedent, who asked Frigoletto "what [he] thought" and "pleaded with [Frigoletto] to come down" to meet with him. 
When asked whether he believed decedent had reviewed the May 2013 trust, Frigoletto stated, "Oh, I know he hadn't reviewed it. I know he hadn't read it because he said he was waiting to see me. He certainly knew what was in it because he knew what I was talking about in our conversation, and he seemed apprehensive, but that's just an opinion." Later in the deposition, Frigoletto stated he was unsure whether decedent reviewed the document at the time of the second phone call, but he knew decedent did not have it in front of him when they spoke. Frigoletto then described the conversation that followed:
Q. And did you read the document to him line-by-line?
A. No.
Q. Did you read any specific provisions to him?
A. Yes.
Q. Which ones did you read to him?
A. The main – the addition of his brother, the changes of some of the moving parts, and that's about it, and then it concluded with that I was – based on every single conversation that I've ever had with him that I was surprised about the size and how big this change was, but that being said, "It's your money. You can give it away however you like, obviously. You don't need me to come down there and review it with you if this is what you want to do." 

And then, again, he asked me if I would come down and he wanted me there fast. 

. . . .

Q. And did he indicate to you that he intended to sign the document as written?

A. No, he never indicated that.

Q. And at the end of the call did he still express a desire to review the document with you?

A. Yes.

Q. And did you make plans to go and review the document with him?

A. Sure, but at that point I was concerned about the fact that I thought he knew what was in the document and I didn't really know why he needed me to endorse it, and I told him again "you don't need me to drive down there for you to do what you want to do." You know, "If you want, just do what you need to do, sign it and send it in." 

Q. But he still expressed the desire to speak with you? 

. . . .

A. Yes.

Q. And to review the document with you?
. Yes.

Mark certified that on the afternoon of May 22, decedent told him, "I am signing a new [w]ill, and I am providing for your father for the first time." Thomas similarly certified that "[a] few days before his death[, decedent] told me his will was dropped off and it reflects his 'wishes' or 'desires.'" 
On May 23, 2013, decedent complained of severe pain, prompting Thomas and Felipe Alicos, decedent's caretaker, to drive decedent to the emergency room in Thomas's car. Both men certified that on the way to the emergency room, decedent asked to return to Brandywine so he could sign his "will"; however, Thomas refused to turn around because he felt decedent needed urgent care. Alicos further certified that after arriving in the emergency room, decedent continued to insist on signing his will. 
Thomas eventually traveled to Brandywine and located a manila envelope on decedent's desk, as decedent had instructed. However, he was unable to see decedent until 4:00 p.m. the next day, May 24, 2013; by that point, decedent was not in a condition to sign the documents. Decedent passed away without signing at 11:30 p.m. that night. 
On May 25, 2013, Oppenheim met with Mark and Thomas at Brandywine. He testified that the envelope containing the May 2013 Trust was "sealed in just the same way that [he had] sealed it," but he also admitted his secretary could have closed the envelope. Oppenheim opened the envelope, verifying decedent had not signed the document. Oppenheim said he had hoped to find decedent's signature, but acknowledged he was "expecting it had not been signed." 
Following oral argument on count one, the motion judge rendered a decision from the bench, granting summary judgment for respondents. Applying our holding in In re Probate of Will and Codicil of Macool416 N.J. Super. 298 (App. Div. 2010), the judge concluded: 
. . . [I]t is clear to the [c]ourt that the Macool test has not been met by the petitioners in this case. I find that pursuant to Macool . . . , we hold for a writing to be admitted into probate as a [w]ill under [ N.J.S.A.] 3B:3-3 the proponent of the writing intended to constitute such a [w]ill must prove, and we're talking about a trust here, by clear and convincing evidence that 1) the decedent actually reviewed the document in question, and 2) thereafter gave his or her final assent to it. Absent either one of these elements a trier of fact can only speculate as to whether the proposed writing accurately reflects the decedent's final testamentary wishes.

And in this case it is clear to the [c]ourt that the plaintiffs have not shown by clear and convincing evidence that the decedent actually reviewed the document in question. Mr. Oppenheim testified that the envelope was in the exact same condition that he had delivered it to Dr. London. Although there is some testimony by Mr. Frigoletto that he went over this testimony, reviewed this testimony with Dr. London I find that that is not sufficient, and that the testimony really is that he never reviewed it with Dr. London.

. . . [I]n Macool . . . [the testator] never had the opportunity to confer with counsel after reviewing the document to clear up any ambiguity, modify any provision or express her final assent to this rough draft.

And that's exactly what happened here. I find that the decedent never actually reviewed the document in question and he never, ever gave his final assent to it. Neither elements have been proven by the plaintiffs by clear and convincing evidence. 

I also find that it's not clear that Dr. London actually reviewed it. He talked it over with Mr. Frigoletto and they talked about various parts of it, but . . . I find that that review was not sufficient in this case.

And also, I find that, so the first prong is not met, and the second prong, giving his final assent to it, that wasn't met either because the circumstances show that he never gave his final assent to that [w]ill, to that alleged [w]ill.

So I find that [ N.J.S.A.] 3B:3-3 has not been complied with, that the test set forth in Macool has not been complied with by plaintiffs. There are no issues of material fact at this point and I will grant partial summary judgment to . . . the respondents in this case. The writing that purports to be the trust of Merritt London will not be admitted. 
We review a grant of summary judgment under the same standard as the motion judge and accord "no special deference" to the judge's legal determinations.  Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh224 N.J. 189, 199 (2016). We must grant summary judgment "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law."  Ibid. (quoting R. 4:46-2(c)). "The inquiry is 'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A.189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am.142 N.J. 520, 536 (1995)). 
Ordinarily, a will2 must comply with the following requirements of N.J.S.A. 3B:3-2:
a. Except as provided in subsection b. and in [ N.J.S.A.] 3B:3-3, a will shall be:

(1) in writing;

(2) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and at the testator's direction; and

(3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.

b. A will that does not comply with subsection a. is valid as a writing intended as a will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.

c. Intent that the document constitutes the testator's will can be established by extrinsic evidence, including for writings intended as wills, portions of the document that are not in the testator's handwriting. 

Plaintiffs acknowledged that decedent did not sign or hand-write the May 2013 Trust. Rather, they argued the facts supported admitting the trust to probate under N.J.S.A. 3B:3-3, which provides:
Although a document or writing added upon a document was not executed in compliance with [N.J.S.A.] 3B:3-2, the document or writing is treated as if it had been executed in compliance with [N.J.S.A.] 3B:3-2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent’s will; (2) a partial or complete revocation of the will; (3) an addition to or an alteration of the will; or (4) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.

[N.J.S.A. 3B:3-3.]

As noted, the motion judge rejected this argument, finding plaintiffs failed to provide evidence that decedent reviewed and assented to the document prior to his death, as required by Macoolsupra416 N.J. Super. 298. Now on appeal, plaintiffs and Thomas argue the judge erred because she disregarded the summary judgment standard and made factual conclusions that fell within the purview of "the trier of fact after a full evidentiary trial," and she ignored material facts favoring their position. They further assert the judge erred by failing to distinguish Macool, contending the record contains material evidence showing decedent did review and assent to the May 2013 Trust. 
In Macool, we held the facts at issue supported the trial court's refusal to admit an unsigned will to probate. Similar to the instant matter, the testator in Macool met with her attorney prior to her death to discuss changes to her will. At the meeting, she gave the attorney a list of handwritten notations, two of which were unclear as to her intent.  Id. at 304, 309. The attorney "dictated the entire will while [the testator] was there," and then had his secretary type a rough draft version.  Id. at 304-05. The attorney expected the testator to return to review the draft; however, she passed away approximately one hour after leaving his office.  Id. at 305. 
Construing N.J.S.A. 3B:3-3, we established the following two-prong test for admitting a writing to probate under this provision: 
[F]or a writing to be admitted into probate as a will under N.J.S.A. 3B:3-3, the proponent of the writing intended to constitute such a will must prove, by clear and convincing evidence, that: (1) the decedent actually reviewed the document in question; and (2) thereafter gave his or her final assent to it. Absent either one of these two elements, a trier of fact can only speculate as to whether the proposed writing accurately reflects the decedent's final testamentary wishes.

[Macoolsupra, 416 N.J. Super. at 310.]

We affirmed, in relevant part in Macool, concluding the testator failed to meet both prongs of the test.  Ibid. Significantly, we observed that the testator "never had the opportunity to confer with counsel after reviewing the document to clear up any ambiguity, modify any provision, or express her final assent to this 'rough' draft."  Id. at 309. We labeled the will a "work in progress" because the attorney purposely omitted two named beneficiaries, and we found the lack of clarity in the testator's notes "render[ed] their inclusion in the draft will problematic."  Ibid. However, we determined that "a writing offered under N.J.S.A. 3B:3-3 need not be signed by the testator in order to be admitted to probate."  Id. at 311. We further noted, "[h]ad [the testator] been able to read the draft will . . . and thereafter express her assent to its content in the presence of witnesses or by any other reasonably reliable means," the result would have been different.  Id. at 312. 
We confirmed the Macool holding in In re Estate of Ehrlich427 N.J. Super. 64, 71-72 (App. Div. 2012), certif. denied213 N.J. 46 (2013). Recognizing that the provisions of N.J.S.A. 3B:3-3 are remedial in nature and entitled to a liberal interpretation, we nevertheless observed that "the greater the departure from [N.J.S.A. 3B:3-2]'s formal requirement, the more difficult it will be to satisfy [N.J.S.A. 3B:3-3]'s mandate that the instrument reflect the testator's final testamentary intent."  Ehrlichsupra, 427 N.J. Super. at 72-73. We emphasized that N.J.S.A. 3B:3-3
places on the proponent of the defective instrument the burden of proving by clear and convincing evidence that the document was in fact reviewed by the testator, expresses his or her testamentary intent, and was thereafter assented to by the testator. In other words, in dispensing with technical conformity, [N.J.S.A. 3B:3-3] imposes evidential standards and safeguards appropriate to satisfy the fundamental mandate that the disputed instrument correctly expresses the testator's intent.

[Id. at 74.] 

However, in Ehrlich we affirmed the trial court's admission of an unsigned will to probate, which had been discovered in a drawer in the testator's home.  Id. at 68. We found that the testator, a trusts and estates attorney, had clearly prepared and reviewed the will himself. Id. at 67, 74. We further determined he gave final assent to the will, because he made a handwritten notation stating he sent the original to the executor and trustee of his estate, and "in the years following the drafting of this document . . . repeatedly orally acknowledged and confirmed the dispositionary contents therein to those closest to him in life."  Id. at 74-75.
Having considered both Macool and Ehrlich, we agree with the motion judge that even giving plaintiffs the benefit of all favorable inferences, the record lacks evidence to support admission of the May 2013 Trust to probate under N.J.S.A. 3B:3-3. Nor do we discern any basis to conclude that an evidentiary trial would yield any additional relevant evidence to satisfy the requirement of proof, by clear and convincing evidence, that decedent reviewed and assented to the document. Notably, the record contains no evidence from which a trier of fact could conclude that decedent "confer[red] with counsel after reviewing the document to clear up any ambiguity, modify any provision, or express [his] final assent."  Macoolsupra, 416 N.J. Super. at 309. 
Indeed, Oppenheim only testified he had an initial "s[it] down" with decedent to go over his changes "paragraph by paragraph," making handwritten notes on a copy of the August 2012 Trust. This clearly did not constitute review or assent, as the testator in Macool also discussed changes with her attorney in a similar manner.  Id. at 304-05. Oppenheim clearly expected decedent to contact him again to express his final approval, which never occurred. Additionally, although we agree with appellants that decedent did not have to "read" the document himself, Oppenheim's testimony regarding the envelope strongly supports the conclusion decedent did not review its contents. 
Furthermore, although Frigoletto testified he went over "specific provisions" with decedent, his testimony clearly shows that decedent desired to wait to review the document with him in person. As in Macool, decedent's knowledge of the contents does not establish review. Moreover, decedent's repeated requests to meet with Frigoletto strongly suggest uncertainty as to the finality of the proposed changes. 
We are therefore satisfied the record reflects no genuine issue as to whether decedent reviewed and assented to the May 2013 Trust prior to his death. Since plaintiffs cannot show decedent reviewed the draft, any further inquiry beyond summary judgment would be to engage in "speculat[ion] as to whether the proposed writing accurately reflects the decedent's final testamentary wishes."  Id. at 310. Decedent's emergency requests that Thomas retrieve his "will" for signing do not show he reviewed the May 2013 Trust or assented to its contents. Consequently, we affirm the order dismissing count one of plaintiffs' complaint. 
We now address the grant of summary judgment on count two, again reviewing the facts in the light most favorable to plaintiffs and Thomas.  Ramossupra, 429 N.J. Super. at 16. We discern the following facts from the record. 
According to WFA's interpleader complaint, decedent opened two IRAs with First Union Bank in 1997, under account numbers xxxx-9415 and xxxx-3249. Wells Fargo later acquired First Union, including decedent's accounts. At the time of his death, WFA possessed two IRAs belonging to decedent, account xxxx-3249, valued at $880,500, and xxxx-7439, valued at $787,086.32. 
WFA also possessed "undated IRA Account and Simplified Employee Beneficiary Designations for [d]ecedent's IRA accounts." These forms designated Patti and Mark as beneficiaries of two First Union accounts: Simplified Employee Pension Plan (SEP) xxxx-5059, and IRA xxxx-5019. 
WFA further noted it "received an incomplete IRA beneficiary form in October 2012 that did not have any account numbers on it and stated 'see attached.'" The attachment listed certain charitable organizations as the beneficiaries. This is a reference to the "Beneficiary Designation" form decedent executed on October 4, 2012, in connection with the October 2012 Amendment. The form states, "All benefits that become payable from my Wells Fargo individual retirement account in the event of my decease shall be paid as this Beneficiary Designation provides." It then devises various portions to the named charitable organizations. 
The record shows that in January 2013, decedent advised Frigoletto that he wanted to open a joint checking account, payable on death (POD) to Thomas. On January 14, 2013, Wells Fargo employee Zelmira Cappola opened a "PMA Premier Checking" account for decedent, account number xxxx-4068, POD Thomas. On January 15, $200,000 was transferred into that account. Next, on January 23, 2013, decedent designated a traditional brokerage account, number xxxx-8954, as transfer on death (TOD) Thomas. On January 28, the $200,000 sum from xxxx-4068 was transferred into this new brokerage account. 
According to the Wells Fargo system, Cappola entered a note in "London Household Notes from Client Link," dated January 14, 2013, which appears to indicate she intended to link the new checking account xxxx-4068 to brokerage account xxxx-8954. However, for reasons that are unclear, the checking account was linked to decedent's IRA, xxxx-3249, as part of a Wells Fargo "Private Banking PMA Package." In addition to accounts xxxx-4068 and xxxx-3249, decedent's PMA Package contained a third account, xxxx-5162, labeled "Retirement Savings." 
The summary pages on decedent's PMA Package statements from January through April 2013 are labeled "MERRIT EVAN LONDON MD[;] POD THOMAS ARNOLD." Each statement lists the total combined assets of the three accounts; the April 30, 2013 statement shows $834,776.36 in total assets: $834,739.26 from the IRA account, xxxx-3249, $29.98 from the "Retirement Savings" account, xxxx-5162, and $7.12 from "PMA Premier Checking Account," xxxx-4068. However, on the individual pages for each account, only the PMA Premier Checking Account, xxxx-4068, is listed POD Thomas. 
At deposition, Cappola stated the linked accounts were related "[j]ust for statement purpose[s] . . . . They each have their own title, so they belong to [decedent], but they're three different accounts." She noted that when customers open a PMA checking account, they can link other accounts of their choosing, or they can let Wells Fargo automatically attach all available accounts that are not otherwise linked, in order to meet the $25,000 minimum balance for the PMA checking account. She did not remember if decedent chose to link the accounts at issue but conceded it was possible he intended to do so. 
Frigoletto testified he believed Cappola linked the PMA checking account "erroneously or for whatever the reason . . . to two other existing accounts probably in an effort to get some sort of store credit or something they do in a community bank for opening accounts." He noted, although the PMA Package statement listed POD Thomas, the PMA statement had actually "tagged two accounts . . . that [Thomas] wasn't listed as payable on death on." He further stated Cappola lacked the authority to change the beneficiaries on pre-existing accounts. According to Frigoletto, decedent never executed a change of beneficiary designation granting Thomas the IRA. However, he conceded decedent never attempted to remove the POD designation from the PMA Package, and said it was possible decedent could have spoken to Cappola about changing the beneficiary designation. 
Mark claimed that in early 2013, decedent said he desired to grant Thomas "less of a specific bequest through his Estate and more outside of his Estate." Thomas similarly claimed that decedent intended to leave him approximately $1,000,000, as demonstrated by his "attempt to designate certain bank accounts as POD Thomas Arnold." Thomas therefore requested a declaration "that the three accounts located in the Private Banking PMA Package with account numbers [xxxx-]3249, [xxxx-]5162 and [xxxx-]4068 were intended by the decedent . . . to be gifted to Thomas Arnold outside his will and trust associated with the will." 
Conversely, respondents contended Cappola "erroneously" linked checking account xxxx-4068 to one of decedent's IRA accounts. They further asserted that notwithstanding this error, decedent's October 4, 2012 Beneficiary Designation form, the last version decedent executed prior to his death, governed the beneficiaries of his IRA accounts. 
Addressing the parties' arguments from the bench at the motion hearing, the judge found the PMA Package statements designating POD Thomas
did nothing to alter the ownership or beneficiary designation on either Dr. London's Wells Fargo IRA accounts and other accounts. So the statement itself makes it clear that [Thomas] had not been designated as POD beneficiary on the account. And all the testimony is clear to the [c]ourt that those three accounts were for the specific purpose . . . of making [Thomas] the POD beneficiary of a certain account, not the brokerage account 3249.

She next addressed the October 4, 2012 Beneficiary Designation form, which plaintiffs argued should not control because it stated "account" instead of "accounts," and did not identify specific account numbers. The judge found:
It's signed and witnessed. It had a date, 10/4/2012. It's signed by Merritt London and it is witnessed by Stephen Oppenheim. And that was the last designation that Dr. London made.

The [c]ourt finds that the absence of account numbers are not fatal to the beneficiary designation forms. That Dr. London, between June 2010 and October 2012 used the forms given to him by Wells Fargo. The specific form prescribed by Wells Fargo was utilized in every instance, there were attachments to it, each was received by Wells Fargo and Mr. Frigoletto of Wells Fargo helped Mr. Oppenheim and [decedent] prepare them.

[N.J.S.A. 17:16I-6] does not require that the account numbers be specified on the written notice or order, so I find that the technical requirements of the statute have been fully complied with. Each of those beneficiary designation forms were executed. There is no room for doubt that Dr. London intended both of his IRA accounts to be governed . . . thereby.

The forms were prepared by Dr. London's attorney as part of his estate plan and they were incorporated by and – the forms were provided by Wells Fargo. Wells Fargo representative Anthony Frigoletto actively was involved in the process which led to the change of beneficiary forms. 

Finally, addressing plaintiffs' argument that the First Union beneficiary form should control, the judge stated:
It is clear to the [c]ourt that the beneficiary forms of First Union Bank do not apply in this case. . . . We have no idea what exactly happened to those accounts, whether they were changed. And even if they are the same accounts that were there in many, many years ago, they have now been changed over the years by Dr. London. 

It is clear to the [c]ourt that Dr. London sought to change his beneficiaries. He did it on numerous occasions. . . . It would be unclear or be improbable that Dr. London would, after making all these changes in beneficiaries over those months from 2010 to 2012, would think that his original designation many, many years ago at First Union Bank[,] which no longer exists apply. 

Now on appeal, Thomas argues the judge erred as a matter of law by applying N.J.S.A. 17:16I-6, which is not applicable to IRA accounts, instead of N.J.S.A. 3B:30-1 to -12, which governs IRAs. Furthermore, both plaintiffs and Thomas argue the judge erred by misinterpreting the facts to favor respondents. 
We first address Thomas's statutory argument. In rendering her decision, the judge applied the Multiple-party Deposit Account Act (MDPA), N.J.S.A. 17:16I-1 to -17. The MDPA defines "[a]ccount[s]" as "contract[s] of deposit of funds between a depositor and a financial institution," which includes checking and savings accounts.  N.J.S.A. 17:16I-2(a). It defines "multiple-party account[s]" to include "(1) a joint account, (2) a P.O.D. account, or (3) a trust account."  N.J.S.A. 17:16I-2(e). The MDPA outlines formal requirements for altering account beneficiaries:
The provisions of section 5 as to rights of survivorship are determined by the form of the account at the death of a party. This form may be altered by written notice or order given by a party to the financial institution to change the form of the account or to stop or vary payment under the terms of the account. The order or request must be signed by a party, received by the financial institution during the party’s lifetime, and not countermanded by other written order of the same party during his lifetime.

[N.J.S.A. 17:16I-6.]

A different statute, the Uniform TOD Security Registration Act (UTSRA), N.J.S.A. 3B:30-1 to -12, applies to "[s]ecurity account[s]," which include "a cash balance in a brokerage account . . . or a brokerage account."  N.J.S.A. 3B:30-2. Importantly, the UTSRA contains no formal requirement for changing a beneficiary, instead providing: "A registration of a security in beneficiary form may be cancelled or changed at any time by the sole owner or all then surviving owners, without the consent of the beneficiary." N.J.S.A. 3B:30-7. The act further urges liberal construction, and allows courts to use "the principles of law and equity [to] supplement its provisions."  N.J.S.A. 3B:30-12. 
A review of the statements for the decedent's IRA, xxxx-3249, show it is a brokerage account dependent on mutual funds, which suggests the UTSRA applies here as well. Thomas further asserts that the dispute in this case does not concern multiple-party deposit accounts but "individually owned security accounts."
Nonetheless, we need not make an ultimate determination on this issue, as we reach the same conclusion under either statute.3 First, the judge correctly determined the October 2012 beneficiary form met the formal requirements of N.J.S.A. 17:16I-6. Second, there is no evidence decedent effected a beneficiary change of IRA xxxx-3249 to satisfy N.J.S.A. 3B:30-7. Review of the entire PMA Package shows the POD Thomas designation referred to the PMA Premier Checking Account only. Even if decedent actually intended to link the accounts, there is no evidence he ever designated Thomas as a beneficiary of IRA account xxx-3249. Given the lack of evidence to the contrary, the principles of equity do not require a different result.  N.J.S.A. 3B:30-12. 
We reject plaintiffs' and Thomas's remaining arguments, substantially for the reasons expressed by the motion judge. The October 2012 beneficiary form, which states "account" in the singular and does not list account numbers, does not change the result. We conclude the form applies to both of decedent's IRA accounts, which he devised to the charitable organizations. Furthermore, the judge correctly found that the First Union forms, designating plaintiffs as the beneficiaries of different IRA accounts, were not sufficient to entitle plaintiffs to decedent's second IRA account. Based on the evidence in the record, any claims regarding decedent's intent to leave Arnold money outside of his estate do not alter our conclusions. In summary, we are satisfied the motion judge did not err by granting summary judgment in favor of respondents. Any arguments not explicitly addressed lack sufficient merit to warrant discussion in a written opinion.  R. 2:11-3(e)(1)(E). 

1  Oppenheim explained that a "pour-over" will adds an estate "to the trust fund to be administered and distributed as the trust agreement provided." 
2  If an instrument is clearly testamentary in nature, its validity depends upon whether the proofs demonstrate that it was executed in accordance with the formal requirements of the statute of wills, N.J.S.A. 3B:3-1 to -49, and with the requisite testamentary intent.
See In re Catanio306 N.J. Super. 439, 445 (App. Div. 1997) (holding a document labelled a trust to comprise instead a codicil, because the document "by its own terms provides that it will become effective upon the settlor's death," while also noting that the document had been executed in compliance with the statute of wills).

3  We have the authority to affirm the lower court "for reasons other than those expressed by the judge."  Price v. N.J. Mfrs. Ins. Co.368 N.J. Super. 356, 359 n.1 (App. Div. 2004), aff'd182 N.J. 519 (2005). 

Friday, October 20, 2017

Living Wills and Advance Directive NJ

Living Wills and Advance Directive NJ

A Living Will is your written expression of how you want to be treated in certain medical conditions. Depending on state law, this document may permit you to express whether or not you wish to be given life-sustaining treatments in the event you are terminally ill or injured, to decide in advance whether you wish to be provided food and water via intravenous devices ("tube feeding"), and to give other medical directions that impact the end of life. "Life-sustaining treatment" means the use of available medical machinery and techniques, such as heart-lung machines, ventilators, and other medical equipment and techniques that will sustain and possibly extend your life, but which will not by themselves cure your condition. In addition to terminal illness or injury situations, most states permit you to express your preferences as to treatment using life-sustaining equipment and/or tube feeding for medical conditions that leave you permanently unconscious and without detectable brain activity.
A Living Will applies in situations where the decision to use such treatments may prolong your life for a limited period of time and not obtaining such treatment would result in your death. It does not mean that medical professionals would deny you pain medications and other treatments that would relieve pain or otherwise make you more comfortable. Living Wills do not determine your medical treatment in situations that do not affect your continued life, such as routine medical treatment and non life-threatening medical conditions. In all states the determination as to whether or not you are in such a medical condition is determined by medical professionals, usually your attending physician and at least one other medical doctor who has examined you and/or reviewed your medical situation. Most states permit you to include other medical directions that you wish your physicians to be aware of regarding the types of treatment you do or do not wish to receive.

2053 Woodbridge Ave.
Edison, NJ 08817
(Phone) 732-572-0500

All States have declared that competent adults have the fundamental right in collaboration with their health care providers, to control decisions about their own health care. States recognize in their law and public policy, the personal right of the individual patient to make voluntary, informed choices to accept, to reject or to choose among alternative courses of medical and surgical treatment.
Modern advances in science and medicine have made possible the prolongation of the lives of many seriously ill individuals, without always offering realistic prospects for improvement or cure. For some individuals the possibility of extended life is experienced as meaningful and of benefit. For others, artificial prolongation of life may seem to provide nothing medically necessary or beneficial, serving only to extend suffering and prolong the dying process. States recognize the inherent dignity and value of human life and within this context recognize the fundamental right of individuals to make health care decisions to have life-prolonging medical or surgical means or procedures provided, withheld, or withdrawn.
States recognize the right of competent adults to plan ahead for health care decisions through the execution of advance directives, such as Living Wills and durable powers of attorney, and to have their wishes respected, subject to certain limitations.
In order to assure respect for patients previously expressed wishes when the capacity to participate actively in decision making has been lost or impaired; to facilitate and encourage a sound decision making process in which patients, health care representatives, families, physicians, and other health care professionals are active participants; to properly consider patients interests both in self-determination and in well-being; and to provide necessary and appropriate safeguards concerning the termination of life-sustaining treatment for incompetent patients as the law and public policy of this State, the Legislatures have enacted Living Will/ Advance Directives for Health Care Acts.
The advance directive for health care (Living Will) requires a writing executed in accordance with the requirements of the state law. It must be either signed and dated in front of an attorney at law or other person authorized to administer oaths, or in the presence of two subscribing adult witnesses. If the two adult witnesses are used, they both must attest that the declarant is of sound mind and not under undue influence. A designated health care representative shall not act as a witness to the execution of the advance directive. Since this is a legal document, it must be executed properly to be valid under the statute.
The declarant must designate one or more alternative health care representatives. "Health care representative" means the person designated by you under the Living Will for the purpose of making health care decisions on your behalf.
An advance directive becomes operative when (1) it is transmitted to the attending physician or to the health care institution, and (2) it is determined pursuant to the Act that the patient lacks capacity to make a particular health care decision.
Treatment decisions pursuant to an advance directive shall not be made and implemented until there has been a reasonable opportunity to establish and where appropriate confirm, a reliable diagnosis for the patient which shall include the attending physicians opinion concerning the nature, cause, extent, and probable duration of the patients incapacity, and shall be made a part of the patients medical records. For additional information or to have a "Living Will" prepared, see your attorney. In addition, be certain your Last Will and testament is up to date.

Planning Ahead For Your Health Care:

Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817

Abstracted from NJ Commission on Legal & Ethical Problems in the Delivery of Health Care
732-572-0500 Legislative Study Commission Brochure

1. Introduction
2. Questions and Answers
3. Terms You Should
4. Understand
1. Introduction:
As Americans, we take it for granted that we are entitled to make decisions about our own health care. Most of the time we make these decisions after talking with our own physician about the advantages and disadvantages of various treatment options. The right of a competent individual to accept or refuse medical treatment is a fundamental right now fully protected by law.
But what happens if serious illness, injury or permanent loss of mental capacity makes us incapable of talking to a doctor and deciding what medical treatments we do or do not want? These situations pose difficult questions to all of us as patients, family members, friends and health care professionals. Who makes these decisions if we cant make them for ourselves? If we can’t make our preferences known how can we make sure that our wishes will be respected? If disagreements arise among those caring for us about different treatment alternatives how will they be resolved? Is there a way to alleviate the burdens shouldered by family members and loved ones when critical medical decisions must be made?
Living Will:
By using documents known as advance directives for health care, you can answer some of these questions and give yourself the security of knowing that you can continue to have a say in your own treatment. A properly prepared Living Will permits you to plan ahead so you can both make your wishes known, and select someone who will see to it that your wishes are followed.
After all, if you are seriously ill or injured and cant make decisions for yourself someone will have to decide about your medical care. Doesn’t it make sense to
•Have a person you trust make decisions for you,
•Provide instructions about the treatment you do and do not want, or
•Both appoint a person to make decisions and provide them with instructions.
A Few Definitions

Throughout this booklet there are four phrases. Each of these phrases has a special meaning when it comes to allowing you to make decisions about your future health care.
• Advance directive-If you want your wishes to guide those responsible for your care you have to plan for what you want in advance. Generally such planning is more likely to be effective if it’s done in writing. So, by an "advance directive" we mean any written directions you prepare in advance to say what kind of medical care you want in the event you become unable to make decisions for yourself.

1. Proxy directives - One way to have a say in your future medical care is to designate a person (a proxy) you trust and give that person the legal authority to decide for you if you are unable to make decisions for yourself. Your chosen proxy (known as a health care representative) serves as your substitute, "standing in" for you in discussions with your physician and others responsible for your care. So, by a proxy directive we mean written directions that name a "proxy" to act for you. Another term some people use for a proxy directive is a "durable power of attorney for health care.”
2. Instruction directives - Another way to have a say in your future medical care is to provide those responsible for your care with a statement of your medical treatment preferences. By "instruction directive" we mean written directions that spell out in advance what medical treatments you wish to accept or refuse and the circumstances in which you want your wishes implemented. These instructions then serve as a guide to those responsible for your care. Another term some people use for an instruction directive is a "Living Will.”
3. Combined directives - A third way combines features of both the proxy and the instruction directive. You may prefer to give both written instructions, and to designate a health care representative or proxy to see that your instructions are carried out.
2. Questions and Answers
1. Why should I consider writing an advance directive/ Living Will?
Serious injury, illness or mental incapacity may make it impossible for you to make health care decisions for yourself. In these situations, those responsible for your care will have to make decisions for you. Advance directives are legal documents which provide information about your treatment preferences to those caring for you, helping to insure that your wishes are respected even when you cant make decisions yourself A clearly written and legally prepared directive helps prevent disagreements among those close to you and alleviates some of the burdens of decision making which are often experienced by family members, friends and health care providers.
2. When does my advance directive take effect?
Your directive takes effect when you no longer have the ability to make decisions about your health care. This judgment is normally made by your attending physician, and any additional physicians who may be required by law to examine you. If there is any doubt about your ability to make such decisions, your doctor will consult with another doctor with training and experience in this area Together they will decide if you are unable to make your own health care decisions.
3. What happens if I regain the ability to make my own decisions?
If you regain your ability to make decisions, then you resume making your own decisions directly. Your directive is in effect only as long as you are unable to make your own decisions.
4. Are there particular treatments I should specifically mention in my directive?
It is a good idea to indicate your specific preferences concerning two specific kinds of life sustaining measures:
1. Artificially provided fluids and nutrition; and
2. Cardiopulmonary resuscitation.
Stating your preferences clearly concerning these two treatments will be of considerable help in avoiding uncertainty, disagreements or confusion about your wishes. The enclosed forms provide a space for you to state specific directions concerning your wishes with respect to these two forms of treatment.
Fluids and Nutrition. I request that artificially provided fluids and nutrition, such as by feeding tube or intravenous infusion (initial one)
1. ______ shall be withheld or withdrawn as "Life Sustaining Treatment."

2. ______ shall be provided to the extent medically appropriate even if other "Life Sustaining Treatment" is withheld or withdrawn.
Directive as to Medical Treatment. I request that "Life Sustaining Treatment" be withheld or withdrawn from me in each of the following circumstances: (Initial all that apply)
1. ______ If the "life sustaining treatment" is experimental and not a proven therapy, or is likely to be ineffective or futile in prolonging my life, or is likely to merely prolong an imminent dying process;
2. ______ If I am permanently unconscious (total and irreversible loss of consciousness and capacity for interaction with the environment);
3. ______ If I am in a terminal condition (terminal stage of an irreversibly fatal illness, disease, or condition); or
4. ______ If I have a serious irreversible illness or condition, and the likely risks and burdens associated with the medical intervention to be withheld or withdrawn outweigh the likely benefits to me from such intervention.
5. ______ None of the above. I direct that all medically appropriate measures be provided to sustain my life, regardless of my physical or mental condition.
5. What is the advantage of having a health care representative, isn’t it enough to have an instruction directive?
Your doctor and other health care professionals are legally obligated to consider your expressed wishes as stated in your instruction directive or "Living Will.” However, instances may occur in which medical circumstances arise or treatments are proposed that you may not have thought about when you wrote your directive. If this happens your health care representative has the authority to participate in discussions with your health care providers and to make treatment decisions for you in accordance with what he or she knows of your wishes. Your health care representative will also be able to make decisions as your medical condition changes, in accordance with your wishes and best interests.
6. If I decide to appoint a health care representative, who should I trust with this task?
The person you choose to be your health care representative has the legal right to accept or refuse medical treatment (including life-sustaining measures) on your behalf and to assure that your wishes concerning your medical treatment are carried out. You should choose a person who knows you well, and who is familiar with your feelings about different types of medical treatment and the conditions under which you would choose to accept or refuse either a specific treatment or all treatment.
A health care representative must understand that his or her responsibility is to implement your wishes even if your representative or others might disagree with them. So it is important to select someone in whose judgment you have confidence. People that you might consider asking to be your health care representative include:
• a member of your family or a very close friend, your priest, rabbi, or minister, or
• a trusted health care provider, but your attending physician cannot serve as both your physician and your health care representative.
7. Should I discuss my wishes with my health care representative and others?
Absolutely! Your health care representative is the person who speaks for you when you cant speak for yourself. It is very important that he or she has a clear sense of your feelings, attitudes and health care preferences. You should also discuss your wishes with your physician, family members and others who will be involved in caring for you.
8. Does my health care representative have the authority to make all health care decisions for me?
It is up to you to say what your health care representative can and cannot decide. You may wish to give him or her broad authority to make all treatment decisions including decisions to forego life-sustaining measures. On the other hand, you may wish to restrict the authority to specific treatments or circumstances. Your representative has to respect these limitations.
9. Is my doctor obligated to talk to my health care representative?
Yes. Your health care representative has the legal authority to make medical decisions on your behalf, in consultation with your doctor. Your doctor is legally obligated to consult with your chosen representative and to respect his or her decision as if it were your decision.

10. Is my health care representative the only person who can speak for me, or can other friends or family members participate in making treatment decisions?
It is generally a good idea for your health care representative to consult with family members or others in making decisions, and if you wish you can direct that he or she do so. It should be understood by everyone, however, that your health care representative is the only person with the legal authority to make decisions about your health care even if others disagree.
11. Can I request all measures be taken to sustain my life?
Yes. You should make this choice clear in your advance directive. Remember, a directive can be used to request medical treatments as well as to refuse unwanted ones.
12. Does my doctor have to carry out my wishes as stated in my instruction directive?
If your treatment preferences are clear your doctor is legally obligated to implement your wishes. unless doing this would violate his or her conscience or accepted medical practice. If your doctor is unwilling to honor your wishes he or she must assist in transferring you to the care of another doctor.
13. Can I make changes in my directive?
Yes. An advance directive can be updated or modified in whole or in part, at any time, by a legally competent individual. You should update your directive whenever you feel it no longer accurately reflects your wishes. It is a good idea to review your directive on a regular basis, perhaps every 5 years. Each time you review the directive, indicate the date on the form itself and have someone witness the changes you make. If you make a lot of changes, you may want to write a new directive. Remember to notify all those important to you of any changes you make.
14. Can I revoke my directive at any time?
Yes. You can revoke your directive at any time, regardless of your physical or mental condition. This can be done in writing, orally, or by any action, which indicates that you no longer want the directive to be in effect.
15. Who should have copies of my advance directive?
A copy should be given to the person that you have named as your health care representative, as well as to your family, your doctor, and others who are important to you. If you enter a hospital, nursing home, or hospice, a copy of your advance directive should be provided so that it can be made part of your medical records. The back cover of this brochure contains a wallet size card you can complete and carry with you to tell others that you have an advance directive.
16. Can I use my advance directive to make an organ donation upon my death?
Yes. You may state your wishes regarding organ donation. Also you may want to place an organ donor card in your wallet to alert medical personnel. Any card will do. If you decide to make a gift of your organs upon your death please complete the card and carry it with you at all times. For further information regarding organ donation you should contact either an organ procurement agency or your local hospital.

3. Terms You Should Understand
1. Artificially provided fluids and nutrition:
The provision of food and water to seriously ill patients who are unable or unwilling to eat. Depending on the method used, such as insertion of a feeding tube or an intravenous line, and the condition of the patient, techniques may involve minor surgery, continuous supervision by medical (and sometimes surgical) personnel, risk of injury or infection, and side effects.
2. C a r d i o p u l m o n a r y Resuscitation (CPR):
A treatment administered by health care professionals when a person’s heartbeat and breathing stops. CPR may restore functioning if administered properly and in a timely fashion and may include the use of mechanical devices and/or drugs.
3. Life-sustaining measures:
Any medical procedure, device, artificially provided fluids and nutrition, drugs, surgery, or therapy that uses mechanical or other artificial means to sustain, restore or supplant a vital bodily function. thereby prolonging the life of a patient.
4. Decision making capacity:
A patient’s ability to understand the benefits and risks of a proposed medical treatment and its alternatives and to reach an informed decision.
5. Health care representative or health care proxy:
In the event an individual loses decision-making capacity, a health care representative or proxy is a person who has been legally designated to make decisions on his or her behalf. A health care representative is appointed through the execution of a proxy directive (a durable power of attorney for health care).
6. Terminal condition :
The terminal stage of an irreversibly fatal illness, disease, or condition. While determination of a specific "life expectancy" is not required for a diagnosis of a "terminal condition a prognosis of a life expectancy of one year or less, with or without the provision of life-sustaining treatment, is generally considered terminal.
7. P e r m a n e n t unconsciousness:
A medical condition defined as total and irreversible loss of consciousness. The term "permanently unconscious" includes the conditions persistent vegetative state and irreversible coma Patients in this condition cannot interact with their surroundings or others in any way and do not experience pleasure or pain.
8. Persistent vegetative state:
A condition of permanent unconsciousness in which the patient loses all capacity for interaction with their environment or other people. It is usually caused by an injury to the brain. It is normally not regarded as a terminal condition and with the aid of medical care and artificial fluids and nutrition patients can survive for many years.
9. Incurable and irreversible chronic diseases:
Disabling diseases such as Alzheimers disease, organic brain syndrome or other diseases, which get progressively worse over time, eventually resulting in death. Depending on the disease, the patient may also experience partial or complete loss of physical and mental abilities. Because the rate at which these diseases advance may be slow, such diseases are not considered terminal in their early stages.

10. Whole brain death:
Death due to total and irreversible loss of all functions of the entire brain, including the brain stem. The criteria of whole brain death must be used to accurately determine death in individuals who have suffered massive or total brain damage but whose heart and lungs are kept functioning by machines. Brain dead individuals are not vegetative or in a coma. but are, in fact, dead.
11. Attending physician :
The doctor directly responsible for your medical treatment. He or she may or may not be your regular family physician. Depending on your health care needs the attending physician may consult with others in order to diagnose and treat your medical condition, but he or she remains directly responsible for your care.

Frequently Asked Questions

1.   Can my healthcare representative make decisions for me if I am still able to make my own decisions? 
Answer: No, your healthcare representative can only make decisions for you if your physician has evaluated you and determined that you are unable to understand your diagnosis, treatment options or the possible benefits and harms of the treatment options.
2.   Can having an advance directive affect my life insurance, health insurance or the benefits I receive from a governmental benefits program?
Answer: No. 
3.   Can my life insurance company, health insurance company, physician, hospital, nursing home or any other healthcare facility require me to have an advance directive?
Answer: No. 
4.   Does New Jersey recognize an advance directive that is valid in another state?
Answer: Yes. 
5.   What is the definition of "life-sustaining treatment"?
Answer: Life sustaining treatment is any medical device or procedure that increases your life expectancy by restoring or taking over a vital bodily function. The medical device or procedure can be a drug, ventilator (breathing machine), surgery, therapy or artificially provided fluids and nutrition. 
6.   What is the definition of “permanently unconscious"?
Answer: Permanently unconscious means you have permanently lost the ability to interact with your environment and are completely unaware of your surroundings. 
7.   What is the definition of "terminal condition"?
Answer: Terminal condition means the final stage of a fatal illness, disease or condition. To be in a terminal condition you do not have to be diagnosed as having less than a certain amount of time to live (e.g., six months or less).
8.   What happens if I regain the ability to make my own decisions?
Answer: In that case, your physician must obtain your consent for all treatment. Once you have the ability to make healthcare decisions your healthcare representative will no longer have the authority to make decisions for you. 
9.   Who should have a copy of my advance directive?
Answer: You should give a copy to your primary healthcare representative, alternate healthcare representative(s), family members and physicians. If you are treated at a hospital or enter a nursing home you should also provide a copy when you are admitted. 

Completing an Advance Directive 
1.   Do I need a lawyer to complete an advance directive?
Answer: No, you can complete an advance directive on your own.
2.   Does my advance directive have to be notarized?
Answer: No.
3.   Do I need a witness when I sign my advance directive? 
Answer: You can choose to get your advance directive notarized, in which case you don't need additional witnesses. Or you can choose to sign and date your advance directive in front of two adult witnesses who must also sign and date the document.
4.   What does it mean for someone to sign my advance directive as a witness?
Answer: As a witness the person is stating that you voluntarily signed your advance directive.
5.   Is there anyone who cannot sign my advance directive as a witness? 
Answer: Yes, the person who you appoint as your healthcare representative cannot be a witness.
6.   Can I change my advance directive?
Answer: Yes, you can change your advance directive any time you want by completing a new one. You need to sign and date your new advance directive and have two witnesses sign and date it.
7.   Can I cancel my advance directive?
Answer: Yes, you can cancel your advance directive any time you want. To cancel it you need to tell your physician, family, healthcare representative, nurse, social worker or a reliable witness that you want to cancel your advance directive. You can tell them verbally or send them a letter.

Instruction Directives 
1.   Can I have an instruction directive without having a proxy directive?
Answer: Yes.
2.   In what circumstance can I have life-sustaining treatment withheld or withdrawn?
Answer: Your instruction directive can state you want life-sustaining treatment withheld or withdrawn in any of the following situations: 1) you are permanently unconscious, 2) you are in a terminal condition, 3) the life-sustaining treatment would likely only prolong an imminent death, 4) the life-sustaining treatment would likely be ineffective or 5) you have a serious irreversible condition and the life-sustaining treatment would likely be more harmful than beneficial. 
3.   Why is it important to have an instruction directive?
Answer: You may become unable to make your own healthcare decisions because of a serious injury, illness or disease. By having an instruction directive your family and physician will know the situations in which you would want or not want to have life-sustaining treatment. And by including a statement about your beliefs, values and general preferences for care and treatment, your physician and family will know what you would want in situations that are not specifically covered by your instruction directive. An instruction directive will also prevent conflicts among your family, physician or other healthcare providers that can occur when a patient's treatment preferences are unknown.

Proxy Directives 
1.   Can my healthcare representative make decisions for me if I am still able to make my own decisions? 
Answer: No, your healthcare representative can only make decisions for you if your physician has evaluated you and determined that you are unable to understand your diagnosis, treatment options or the possible benefits and harms of the treatment options. 
2.   Can I have a proxy directive without having an instruction directive?
Answer: Yes.
3.   What authority does my healthcare representative have to make decisions for me?
Answer: Except for any restrictions you have placed on their authority, your healthcare representative has the right to make all healthcare decisions for you, including the right to refuse medical treatment. They also have the right to review your medical records and receive from your physician all information about your condition, prognosis and treatment options as is necessary for them to make an informed decision. 
4.   Who can I appoint as my healthcare representative?
Answer: You can appoint your spouse/domestic partner, parent, adult child, family member, friend, religious/spiritual advisor or any other adult. 
5.   Are there any restrictions on who I can appoint as my healthcare representative?
Answer: Yes, you cannot appoint the following individuals as your healthcare representative: 1) your attending physician or 2) the operator, administrator or employees of a healthcare institution in which you are a patient or resident, unless they are related to you. A physician who is an operator, administrator or employee of a healthcare institution in which you are a patient or resident can be your healthcare representative only if they are not your attending physician.
6.   Can I appoint more than one person as my primary healthcare representative?
Answer: No.
7.   Can I appoint someone as an alternate healthcare representative in case my primary healthcare representative is unavailable, unable or unwilling to serve as my healthcare representative?
Answer: Yes, you can appoint one or more individuals as an alternate healthcare representative listed in order of priority. In the event the primary healthcare representative becomes available they would take over for the alternate.
8.   Can I put requirements on how my healthcare representative makes decisions?
Answer: Yes, you can require your healthcare representative to consult with the alternate healthcare representatives, specific family members, friends or anyone else you want. You can also state specific criteria upon which your healthcare representative has to base their decisions.
9.   Can I limit the decision-making authority of my healthcare representative?
Answer: Yes, for example you can state that your healthcare representative cannot authorize life-sustaining treatment if it would conflict with the preferences you stated in your instruction directive.
10.                Can my healthcare representative be required to pay for my medical treatment?
Answer: No, your healthcare representative cannot be required by a physician, other healthcare provider or any healthcare facility to pay for your treatment, including treatment they have authorized. 
11.                Why is it important to have a proxy directive?
Answer: You may become unable to make your own healthcare decisions because of a serious injury, illness or disease. If you cannot make your own healthcare decisions someone will have to make them for you and without a proxy directive your physician will not know who you want that person to be. Having a proxy directive will help ensure your preferences are respected because only the person you have appointed will be able to make healthcare decisions on your behalf. Also, having a proxy directive will help prevent conflicts among your family members who may disagree on who should have the authority to make these decisions. Even if you have an instruction directive, it is important to have a proxy directive because there are many circumstances in which treatment decisions will have to be made that are not covered by your instruction directive. 
12.                Is my physician required to get consent from my healthcare representative for treatment?
Answer: Yes, your physician is required to obtain informed consent for your treatment (except in emergencies), and must respect their decisions just as if the decisions were coming directly from you.
13.                Who should I appoint as my healthcare representative?
Answer: You should choose someone who knows your values, beliefs and preferences well enough to know what treatment decisions you would want them to make for various medical conditions. The person should be someone with good judgment and who will be a strong advocate on your behalf. They should also be someone you believe will respect your wishes even if they disagree with them, especially when it comes to your preferences about the use of life-sustaining treatment.
Kenneth A. Vercammen is an Edison, Middlesex County, NJ trial attorney who has published 125 articles in national and New Jersey publications on Probate and litigation topics. He is author of the American Bar Association’s book “Wills and Estate Administration”. He often lectures to trial lawyers of the American Bar Association, New Jersey State Bar Association and Middlesex County Bar Association. He is Chair of the American Bar Association Estate Planning & Probate Committee. He is also Editor of the ABA Elder Law Committee Newsletter
He is a highly regarded lecturer on litigation issues for the American Bar Association, ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published by New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the New Jersey Municipal Court Law Review. Mr. Vercammen is a recipient of the NJSBA- YLD Service to the Bar Award.
In his private practice, he has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey several times each week on many personal injury matters, Municipal Court trials, and contested Probate hearings.
Attorney at Law
2053 Woodbridge Ave.
Edison, NJ 08817