The New Jersey Medical Aid in Dying for the Terminally Ill Act

We have witnessed a growing movement to allow terminally ill patients to end their own lives on their terms throughout the United States. New Jersey joined that movement when the Medical Aid in Dying for the Terminally Ill Act (“Act”) was signed into law by Governor Phil Murphy on April 12, 2019. The Act becomes effective on August 1, 2019, making New Jersey the eighth jurisdiction in the country to allow terminally ill patients to end their own lives with life-ending medication prescribed by their attending physicians.

The Act (codified at N.J.S.A. 26:16-1, et seq.) outlines how a terminally ill patient may request life-ending medication. A patient may request life-ending medication if the patient (a) is an adult New Jersey resident (as defined by N.J.S.A. § 26:16-11), (b) is capable and has been determined to be terminally ill and (c) has voluntarily requested to receive the medication. N.J.S.A. 26:16-4.

The first prong arises out of concern that residents of other states will travel to New Jersey to receive life-ending medication.  New Jersey residency may be satisfied if a terminally ill patient provides a copy of one of the following to their attending physician: (a) a driver’s license or non-driver identification card issued by the New Jersey Motor Vehicle Commission; (b) proof that the person is registered to vote in New Jersey; (c) a New Jersey resident gross income tax return filed for the most recent tax year; or (d) any other government record that the attending physician reasonably believes demonstrates that the individual’s current residency is the state of New Jersey. These requirements are intended to prevent non-New Jersey residents from traveling to New Jersey to request life-ending medication. Other jurisdictions that enacted similar death with dignity laws have incorporated a residency requirement in order for a terminally ill patient to receive life-ending medication in that jurisdiction.

To establish residency in New Jersey, one must establish a physical address in the state and obtain a driver’s license or non-driver identification card that reflects the New Jersey address. The requirements for both forms of identification require an applicant to provide proof of address, which include copies of utility bills, bank account statements, current mortgage or rental agreements or property tax bills from the past year. To register to vote, a resident may fill out a voter registration application form established by the county in which the voter resides but the voter must produce a New Jersey driver’s license, non-driver identification card or swear that the voter does not possess government-issued identification.

The second prong is primarily the patient’s attending physician’s responsibility. N.J.S.A. 26:16-4 requires a patient to be “capable” and “terminally ill.”  “Capable” means having the capacity to make health care decisions and to communicate those decisions to a health care provider, including communication through persons familiar with the patient’s manner of communicating if those persons are available.  N.J.S.A. 26:16-3.“Terminally ill” means that the patient is in the terminal stage of an irreversibly fatal illness, disease, or condition with a prognosis, based upon reasonable medical certainty, of a life expectancy of six months or less. N.J.S.A. 26:16-3. To be determined a “qualified terminally ill patient,” a consulting physician must also examine the patient to confirm the attending physician’s diagnosis and authenticate the patient’s capacity and voluntariness. N.J.S.A. 26:16-7. Attending physicians are required to maintain extensive records, which include documentation of a patient’s requests for medication, records concerning the patient’s diagnosis, prognosis, capacity, and voluntariness in submitting such requests, as well as records from consulting physicians and any other health care professionals involved with the patient’s request for medication. N.J.S.A. 26:16-10(d). These records are a part of the medical record of a terminally ill patient. The attending physician is also required to submit a copy of these records to the New Jersey Department of Health no later than 30 days after dispensing life-ending medication to a terminally ill patient. N.J.S.A. 26:16-13(a)(1).

The third prong is a multi-step process that requires a patient to make two oral requests and one written request to a patient’s attending physician. A patient may submit a written request to receive life-ending medication to his or her attending physician when the patient makes the initial oral request or at any time thereafter. N.J.S.A. 26:16-10(a)(3). The two oral requests must be made at least 15 days apart and the attending physician must advise the patient to consult with another health care professional to discuss other treatment options but the patient is not required to participate in the consultation. N.J.S.A. 26:16-10(c). After making the second oral request, the attending physician must afford the patient an opportunity to rescind the request for life-ending medication, which may be completed at any time and for any reason. N.J.S.A. 26:16-10(a)(2),(b).

The Act has raised issues regarding life insurance policies that are owned by terminally-ill patients. Many life insurance policies contain suicide riders that prevent a payout if the insured commits suicide within the first two years of binding an insurance policy. After the two-year period lapses, most policies pay out the death benefit, even if the cause of death is suicide. However, the Act differentiates between patients who ingest life-ending medication and those who partake in assisted suicide.

Additionally, deaths that occur within the parameters of the Act do not constitute suicide or assisted suicide. N.J.S.A. 2C:11-6. As such, suicide riders in most life insurance policies are irrelevant, as deaths under the Act are not considered suicide.  The cause of death for those who pass away in accordance with the terms of the Act will likely reference natural causes on the decedent’s death certificate.

In jurisdictions in which a person passes away in accordance with similar “death with dignity” laws, the underlying terminal illness is generally listed as the cause of death and the manner of death is denoted as “natural” per the instructions of most of the jurisdictions’ respective health departments. Furthermore, in New Jersey, the Act provides that any  provision in a contract, last will and testament, insurance policy, annuity, or other agreement, whether written or oral, made on or after August 1, 2019, that purports to restrict a person’s decision to make or rescind a request for life-ending medication will be invalidated and that premium rates for insurance policies or annuities cannot be conditioned on the same request. N.J.S.A. 26:16-14. In the states in which “death with dignity” laws are in effect, we found no challenges regarding remittance of death benefits under a life insurance policy.

The Act will likely make it easier for New Jersey residents suffering from a terminal illness to end their lives on their own terms. The Act includes safeguards and a well-defined process that allows capable, terminally ill patients who are fully informed of their decision to voluntarily terminate their lives if they feel that it is in their best interest to do so. The Act also guides health care providers and advocates who support dying patients.

Michael Salad is a partner in Cooper Levenson’s Business & Tax and Cyber Risk Management practice groups. He concentrates his practice on estate planning, business transactions, mergers and acquisitions, tax matters and cyber risk management. Michael holds an LL.M. in Estate Planning and Elder Law. Michael is licensed to practice law in New Jersey, Florida, Pennsylvania, New York and the District of Columbia. Michael may be reached at (609) 572-7616 or via e-mail at msalad@cooperlevenson.com.

Shaiful Kashem is a summer Law Clerk at Cooper Levenson. He is a candidate for a J.D. at Rutgers School of Law in Camden. Shaiful may be reached at (609) 344.3161 or via e-mail at skashem@cooperlevenson.com.