New Jersey Psychiatric Advance Directives: The State Form, the Witnesses, and the NJPAD Registry

New Jersey’s signing rules are light: at least one qualified adult witness and no notary. Whether the directive actually helps you is mostly decided before and after the signature. Before it, the first page of the state form records your choices about when the plan switches on and whether you want to be able to revoke it during a crisis. After it, copies have to reach the people who will be there, because a directive no one has seen cannot be followed. This page covers the New Jersey law, the state form, and the NJPAD registry. For what a psychiatric advance directive is and how states differ, start with the general guide to psychiatric advance directives.

What the New Jersey law does

The New Jersey Advance Directives for Mental Health Care Act (P.L. 2005, c. 233) lets an adult with decision-making capacity write down, ahead of time, what mental health treatment they want and do not want, and name someone to decide for them if they cannot. The law calls the person who writes it the declarant, and the person they name the mental health care representative.

A New Jersey directive can have two parts, and you can use either or both:

• An instruction directive, which spells out your preferences: which medications you consent to and which you refuse, which hospitals you prefer or want to avoid, whether you consent to admission, and who should be contacted.
• A proxy directive, which names your mental health care representative and, if you want, an alternate. You can limit what your representative is allowed to decide.

This is a separate document from New Jersey’s general advance directive for health care (N.J.S.A. 26:2H-53 et seq.), which includes what people usually call a living will. The general directive covers health care decisions, including life-sustaining treatment, when you cannot make them yourself, and people often use it for end-of-life choices. The mental health directive is built for a psychiatric crisis, and it has its own statute, its own form, and its own registry. Making one does not weaken a general advance directive you already have (N.J.S.A. 26:2H-120).

The state form, part by part

The Division of Mental Health and Addiction Services (DMHAS) publishes the form in English and Spanish, as a fillable PDF and as a print-and-handwrite version, with a three-page set of instructions dated March 19, 2019. The form is adapted from the crisis plan in the Wellness Recovery Action Plan, so it reads less like a legal document and more like a description of you. You do not have to fill in every part. The instructions say to draw a line through any section you leave blank and initial it.

Page 1 holds three choices that decide how the whole document behaves:

1. When it activates. Either only after a clinician determines you lack capacity, or, without that determination, whenever the signs and symptoms you list in Part 2 are evident. The second option is for people who want the plan followed before anyone has made a formal finding.
2. Whether you want to be able to revoke it during a crisis. One line says you can modify, suspend, or revoke the directive at any time as permitted by law. The other says you do not wish to modify, suspend, or revoke it while it is invoked. The state’s instructions describe the second as an option for people who know they do not always make good decisions about their care when they are in a crisis.
3. Whether to name a representative. A primary and an alternate, with phone numbers.

Page 2 applies only if you named a representative. You choose how they should decide when the document is silent (what you would have decided, or what they think is in your best interest after talking to your providers and supporters), and whether they can consent to admitting you to an inpatient or partial hospital program, and for how many days.

Parts 1 to 9 are the plan itself:

• Part 1. What you are like when you are well, so staff who have never met you know what to aim for.
• Part 2. The symptoms and behaviors that mean you are in crisis. These are the signs that can activate the plan if you chose that option on page 1. It also has a space for substances you have used before or during a crisis and what you are like on them. The form introduces it with “Without admitting to current use of substances,” and the instructions say completing it does not admit to using any of them.
• Part 3. Supporters: who to contact, who not to involve, and who takes over specific jobs, from feeding the pet to telling your employer, to caring for a child or parent who depends on you.
• Part 4. Medical information: your providers and which ones to involve, pharmacy, insurance, medical conditions, every medication you take, drug allergies, the medications that have helped and that you consent to, and the ones you refuse, with the reason for each refusal.
• Part 5. What supporters and hospital staff can do that helps, and what makes things worse.
• Part 6. A plan to stay out of the hospital if that is possible: staying with family, daily check-ins, respite housing.
• Part 7. Hospitals and treatment facilities you prefer, and those you want to avoid.
• Part 8. Treatments you want and treatments you want to avoid, which is where people record their wishes on seclusion, restraint, and electroconvulsive therapy.
• Part 9. What tells everyone you are well enough to make your own decisions again.

Page 9 is the signature page, and page 10 is blank for anything else you want to add.

Signing it: witnesses, not a notary

Under N.J.S.A. 26:2H-105, you sign and date the directive, or direct someone to sign it for you, in the presence of at least one adult witness. The witness attests that you appear to be of sound mind and free of duress and undue influence. The statute does not mention a notary, and the state form has no notary block.

Two people can never witness it: the person you named as your representative (or alternate), and the clinician responsible for or directly involved in your care at the time. The form’s witness statement has each witness confirm both.

A second witness is required if your only witness is any of these: related to you by blood, marriage, adoption, or domestic partnership; living in your home; entitled to any part of your estate; or an operator, administrator, or employee of a rooming house, boarding house, or residential health care facility where you live. A spouse or sibling can witness, but not alone.

The form also says that any directive signed with a more recent date takes precedence. If you update your plan, you sign and witness the whole thing again with the new date, and the old one is superseded.

When it switches on, and who decides

By default, the directive becomes operative when two things have happened: it has reached the responsible mental health care professional or the psychiatric facility, and that professional has determined that you lack the capacity to make a particular mental health care decision. The law also lets you stipulate an earlier start in the directive itself (N.J.S.A. 26:2H-108(a)(2)). The state form offers this as its second activation option, which ties activation to the symptoms you list in Part 2.

The capacity determination has rules of its own under N.J.S.A. 26:2H-109. The responsible clinician makes it, and it must be confirmed by one or more other mental health care professionals. A clinician you named as your representative cannot make it. You and your representative must be told of the determination, told of your right to contest it, and given access to the facility’s dispute resolution process. The finding is only for the purpose of implementing the directive, and it is decision by decision: if you regain capacity for a particular decision, you make that decision.

Treatment decisions under the directive are not supposed to be made until there has been a reasonable opportunity to establish a reliable diagnosis and prognosis.

When clinicians may not follow it

New Jersey clinicians must honor an instruction directive that gives clear and unambiguous guidance for the situation, and must follow your representative’s decisions. If your instructions are not specific to the situation, the responsible clinician uses reasonable judgment to carry out your wishes, giving full weight to what you wrote (N.J.S.A. 26:2H-113(a) and (b)). The statute lists four situations in which clinicians may decline, and the list appears twice, once for the representative’s decisions and once for instruction directives:

• following it would violate the accepted standard of mental health care for your condition;
• it requires a form of care or treatment that is not available to the responsible clinician;
• it would violate a court order or a statute;
• it would endanger your life or health, or someone else’s.

The law also says it does not override New Jersey’s civil commitment statute or any court order about commitment or admission. A directive cannot by itself stop an involuntary commitment that meets the legal standard. If a court order or another statute knocks out one provision of your directive, the rest still stands.

State psychiatric hospitals have their own obligations. Under N.J.A.C. 10:32-1.5 they must ask every patient at admission whether they have a directive, offer the form and information, help patients complete one, and document any capacity determination, every decision made under a directive, and every time staff do not follow it, with the reason. More broadly, the Act requires every psychiatric facility, a term that includes psychiatric units of general hospitals, short-term care facilities, and licensed or state-funded community mental health programs, to have policies for asking about a directive at admission and for helping interested patients make one (N.J.S.A. 26:2H-114 and 26:2H-104). Under the statute, every responsible mental health care professional must make an affirmative inquiry about whether a directive exists. Those are duties to ask. They are not a promise that a crisis team or an emergency room will go looking in the registry.

Changing or revoking it

A New Jersey directive lasts indefinitely unless you write in an expiration date, and if that date arrives while you lack capacity, the directive stays in effect until you regain it. You can revoke it by telling your representative, a clinician, or another reliable witness, in writing or out loud, by any other act that shows you mean to revoke it, or by signing a new directive (N.J.S.A. 26:2H-106(d)). A revocation takes effect when it is communicated (26:2H-106(g)). Modifying or reaffirming it requires the same signing and witnessing as the original.

If you are an inpatient in a psychiatric facility, you can still modify, suspend, or revoke it by any of the means above, such as telling your representative or a clinician, unless your responsible clinician determines, with confirmation from a second mental health care professional, that you lack the capacity to make that particular decision (N.J.S.A. 26:2H-106(f) and 26:2H-109). The page 1 revocation choice comes from a different provision. The law lets you state in advance whether you want to be able to modify, revoke, or suspend the directive once it is operative (26:2H-106(b)), and the form’s second line is that statement. The statute does not spell out how that statement interacts with the inpatient rule, or how far it holds you if no one has found that you lack capacity. Think carefully before initialing it, and talk it through with your clinician, or with Disability Rights New Jersey if you want a legal view.

Naming a spouse, civil union partner, or domestic partner as your representative is revoked automatically by divorce, legal separation, or the end of the partnership, unless your directive says otherwise.

The NJPAD registry

New Jersey launched NJPAD on June 27, 2019. DMHAS contracted with the U.S. Living Will Registry for a voluntary, secure online registry for psychiatric advance directives; the state describes NJPAD as operated by the U.S. Advance Care Plan Registry, powered by the U.S. Living Will Registry. The rules for it are in N.J.A.C. 10:32-2.

Registering. You create an account through the link on the DMHAS forms page and upload your signed, witnessed directive as a PDF. It sits as “pending” until a registry specialist confirms it can be opened and read; the state’s FAQ says to allow a day. MHANJ notes that you can also register by mail, sending a paper copy with the registry’s registration agreement to NJPAD, PO Box 2789, Westfield, NJ 07091. To update it, you upload a complete new directive, signed and witnessed with the new date, and it replaces the old one. The signature page of the state form has a line to initial if you have registered it.

Who can look it up. The regulation limits registry access to DMHAS staff, you, licensed independent practitioners, and certified mental health screeners employed by a designated screening service. Clinicians get credentials from DMHAS on proof of their license and may use them only for a person they are responsible for. You get your own login and may share it with your representative, and DMHAS will give a login to a representative named in your directive or a court-appointed guardian who shows proof (N.J.A.C. 10:32-2.2(c)). Access is online around the clock, or by phone to DMHAS during weekday business hours. When the registry launched, the state said designated DMHAS psychiatric emergency services, affiliated psychiatric emergency services, and short-term care facilities had provider access.

Removing it. The state FAQ says to call the registry at 1-800-548-9455 to revoke your registered directive, after which no one can view it there. Taking it off the registry does not retrieve the copies you handed out. If you mean to revoke the directive itself, also tell your representative and your clinicians and ask for the copies back. If you only want it off the registry and still want it to stand, say so plainly when you call.

If you do not register. The instructions point to a wallet card from the Mental Health Association in New Jersey that tells a treating clinician where to get a copy. Either way, the people who will actually be in the room need their own copies: your representative, your psychiatrist or therapist, your preferred hospital, and whoever holds your household crisis plan.

Making one, step by step

1. Do it on a good day. The state instructions open with that reminder: complete the form when you are feeling well, not when you are in a crisis. You must have capacity when you sign, and some people ask their psychiatrist or therapist to note in the record that they did.
2. Download the current DMHAS form and instructions. Use the state form, not a template from another state.
3. Ask for help filling it in if you want it. The Mental Health Association in New Jersey runs trainings on completing a directive for individuals, families, and providers. Disability Rights New Jersey, the state’s protection and advocacy agency, is listed on the state’s PAD instructions, and the state’s NJPAD FAQ names it for questions and for help if a directive is not followed. A clinician who knows your history is the best person to review Part 4.
4. Make the page 1 choices on purpose. The activation choice and the revocation choice work together. Choosing the symptom-based trigger asks the people treating you to follow your written plan when those symptoms appear, before any clinician has found that you lack capacity. Your representative’s authority to decide for you still starts only when a clinician has determined that you lack capacity (N.J.S.A. 26:2H-110(a)). Adding the line about not revoking while the plan is invoked records that you do not want to be able to back out at that point; the statute does not settle how far that holds when no one has found you lack capacity. Some people want that combination, because they know what they do when they are unwell. Others would rather wait for a capacity finding and keep the right to revoke at any time as permitted by law. Go over the combination with your clinician before you initial either line.
5. Talk to your representative before you name them. They need to be willing, reachable, and clear on what you want. They cannot witness the document.
6. Sign in front of a witness who qualifies, and a second one if the first is family, a domestic partner, a housemate, an heir, or staff where you live.
7. Hand out copies, then decide about the registry. Copies first. Registration is optional, and it helps a clinician only if that clinician has credentials and thinks to look.
8. Review it after every crisis and whenever a medication, clinician, hospital, or phone number changes. A new version means signing, witnessing, and dating it again, and a new upload if you registered.

Who to call with questions about a New Jersey directive

These are offices for questions about the document. None of them is a crisis line. In a crisis, call 911 or call or text 988.

• Mental Health Association in New Jersey, for trainings on completing a directive: (800) 367-8850, the number printed on the state’s PAD instructions. MHANJ also posts the forms and the wallet card.
• Disability Rights New Jersey, for questions and for help if a directive is not followed: (800) 922-7233, also from the state instructions. This is New Jersey’s federally designated protection and advocacy agency.
• DMHAS, for phone access to the registry and for questions: 1-800-382-6717, the number the regulation gives for telephone access to the registry during business hours, and the number the state FAQ lists for questions.
• U.S. Advance Care Plan Registry, which operates NJPAD, for uploading, updating, or removing a registered directive: 1-800-548-9455, weekdays 9 a.m. to 5 p.m. Eastern, the help desk the state FAQ lists.