On April 12, 2019, Governor Phil Murphy signed the Medical Aid in Dying for the Terminally Ill Act, P.L.2019, c.59 (to be codified as N.J. Stat. Ann. 26:16-1, et. seq.), (the “Act”) making New Jersey the eighth jurisdiction in the country (including the District of Columbia) to allow terminally ill patients to end their own lives in a humane and dignified manner. Effective Aug. 1, 2019, terminally ill adult residents of New Jersey may legally request and self-administer medication to end their lives.

Oregon was the first state to enact similar legislation effective in 1997. Nearly 10 years later, other states followed, beginning with Washington (2008), then Vermont (2013), California (2015), Colorado (2016), the District of Columbia (2016) and Hawaii (2018). Death with dignity laws gained national attention in 2014 when 29-year-old Brittany Maynard, who was diagnosed with glioblastoma, became a vocal activist for these laws. She relocated from California to Oregon to take advantage of Oregon's Death with Dignity law to end her life on her terms. As of 2019, the Death with Dignity National Center reports that approximately 20 other states, including New York, are considering similar laws or ballot initiatives to permit death with dignity.

In New Jersey, the Act aims to provide a defined and safeguarded process in assisting a capable, terminally ill patient with the request to end his or her life, while serving as a guide to health care providers and patient advocates who support dying patients, protecting vulnerable adults from abuse, and ensuring that the process is entirely voluntary on the part of the patient and the health care providers. The Act also differentiates itself from (and prohibits) assisted suicide, which is a crime of the second degree under New Jersey law. See N.J.S.A. 26:16-15; N.J.S.A. 2C:11-6 (as amended by the Act).

The burden of the Act is largely on the patient's attending physician, who has primary responsibility for treating the patient and is ostensibly most familiar with the patient, the patient's terminal condition and family circumstances. The attending physician is required to maintain extensive records, including documentation of the patient's requests for medication, records concerning the patient's diagnosis, prognosis, capacity and voluntariness in submitting such requests, as well as records from the consulting physician and any mental health care professionals involved with the patient's request for medication. N.J.S.A. 26:16-10(d).

A patient can request life-ending medication if the patient (1) is an adult New Jersey resident, (2) who is capable and has been determined to be terminally ill, and (3) has voluntarily requested to receive the medication. N.J.S.A. 26:16-4. A patient who meets these requirements is deemed a “qualified terminally ill patient,” who is permitted to receive the fatal medication. N.J.S.A. 26:16-3. A patient will not be deemed a qualified terminally ill patient based solely on age, disability or diagnosis of a specific condition. N.J.S.A. 26:16-3.

Non-residents are ineligible to request medication under the Act, even if they travel to New Jersey to receive care. Proof of residency (e.g., a New Jersey driver's license or resident income tax return) must be provided to the patient's attending physician. N.J.S.A. 26:16-11.

The requesting patient must have the capacity to make health care decisions and to communicate them to a health care provider, even if such communications are made “through persons familiar with the patient's manner of communicating.” N.J.S.A. 26:16-3; see N.J.S.A. 26:16-4(b). The patient's attending and/or consulting physician is responsible for confirming the patient's capacity. Communicating through others, however, does not authorize a guardian, conservator, a health care representative, or the patient's POLST (Practitioner Orders for Life-Sustaining Treatment) representative to submit the request for medication on behalf of the patient; such persons can only submit a request for the medication if he or she is simply communicating the patient's health care decisions to the attending physician at the request of the patient. N.J.S.A. 26:16-16.

Notably, the language of N.J.S.A. 26:16-16 appears incompatible with the capacity requirement in the Act because (1) health care representatives only act when the patient is unable to make health care decisions for himself or herself, and (2) if an adult patient has a guardian, they are already incapacitated and cannot make decisions. Unless the patient provides or communicates clear instructions for the guardian and/or health care representative to request the medication (for example, in the patient's advance directive), it is unclear whether communications from such fiduciaries will be received.

In addition to determining capacity, the patient's attending physician must diagnose the patient as being in the “terminal stage of an irreversible fatal illness, or condition with a prognosis,” with “reasonable medical certainty, of a life expectancy of six months or less.” N.J.S.A. 26:16-3; see N.J.S.A. 26:16-4(b). Finally, to be deemed a “qualified terminally ill patient,” a consulting physician must also examine the patient to confirm the attending physician's diagnosis and verify the patient's capacity and voluntary nature of this request. N.J.S.A. 26:16-7.

The voluntary request for medication is also a multi-step process. First, the patient must make two oral requests for medication to the attending physician at least 15 days apart, and one written request for the medication, which can be submitted with or after the first oral request. N.J.S.A. 26:16-10(a). Second, after receiving the patient's first oral request for medication, the attending physician must recommend that the patient consult with another health care professional to discuss additional treatment options, palliative, comfort and hospice care, and pain management options. N.J.S.A. 26:16-10(c). The patient is not required to participate in this consultation. Third, after receiving the patient's second oral request for medication, the attending physician must give the patient an opportunity to rescind the request, which can be rescinded at any time and for any reason. N.J.S.A. 26:16-10(a)(2),(b). The attending physician can only write a prescription for the medication if at least 15 days have lapsed after the initial oral request, and at least 48 hours have lapsed after receiving the patient's written request. N.J.S.A. 26:16-10(a)(5),(6).

Written requests for medication must be made using the statutory form provided in N.J.S.A. 26:16-20, which can be prepared by the patient's attorney. The request form must be signed and dated by the patient and witnessed by at least two witnesses attesting to the patient's capacity and voluntary action in signing the request. N.J.S.A. 26:16-5. The Act is silent on whether a guardian or other representative can sign the written request for medication on behalf of the patient. In an effort to curb potential abuse, the Act specifically prohibits certain persons from acting as witness to the written request for medication. Specifically, at least one of the witnesses cannot be (1) a relative by blood, marriage or adoption, (2) an heir or beneficiary of the patient's estate, or (3) an owner, operator or employee of a health care facility where the patient is receiving care. N.J.S.A. 26:16-5(b). The patient's attending physician cannot serve as a witness under any circumstances. N.J.S.A. 26:16-5(c).

Before the attending physician can write a prescription for medication under the Act, the physician must ensure that all of the appropriate procedures under the Act have been taken. N.J.S.A. 26:16-6. In addition, the attending physician is responsible for informing the patient of the potential risks in taking such medication, the probable outcome, and any feasible alternatives to taking the medication, including other treatment options and palliative care. N.J.S.A. 26:16-6(a)(3). The attending physician is also responsible for advising the patient to notify his or her next of kin (if any) about the request. N.J.S.A. 26:16-9. If the circumstances are appropriate, the attending physician may need to refer the patient to counseling with a mental health professional. N.J.S.A. 26:16-6(a)(5).

The attending physician must also advise the patient to have someone else present if and when the patient chooses to self-administer the medication, and the patient cannot take the medication in a public place. N.J.S.A. 26:16-6(a)(7). It is important for the patient to be aware that if he or she does take the medication in public, any governmental agency (e.g., first responder or environmental clean-up services) that incurs costs resulting from the patient's public actions can file a claim against the patient's estate to recover those costs and attorney fees related to enforcing this claim. N.J.S.A. 26:16-19. Any medication that is dispensed to the patient but not used must be lawfully disposed of by a person designated by the patient. N.J.S.A. 26:16-12. The medication may be disposed of anonymously at certain local police departments listed on the New Jersey Division of Consumer Affairs website as part of the State's Project Medicine Drop initiative.

The Act further provides that any provision in a contract, will, insurance policy, annuity or other agreement made on or after Aug. 1, 2019, that purports to restrict a person's decision to make or rescind a request for medication will be invalidated. N.J.S.A. 26:16-14. Premium rates for insurance policies or annuities, or the procurement or issuance thereof, also cannot be conditioned on the making or rescinding of a request for medication. Id.

For terminally ill patients in New Jersey, the Act provides another choice in making health care decisions when faced with a terminal medical condition. Although the responsibilities of the Act fall mainly on physicians, the Act offers attorneys another tool, in addition to advance directives and health care proxies, to assist terminally ill clients in addressing their end-of-life health care decisions. Attorneys drafting the written request forms should be aware of the client's voluntary actions in making the request and ensure compliance with the Act's signing requirements to avoid potential liability.

Daniela P. Catrocho is an associate with Day Pitney in Parsippany. She concentrates her practice in all areas of trust and estate law.