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Frequently Asked Questions About Advance Directives and Health Care Planning in Connecticut

Frequently Asked Questions About Advance Directives and Health Care Planning in Connecticut

May 2018 by CLS

Individuals have rights, through common law, the Federal constitution and state statutes, to make informed decisions about their health care.  Courts have also found that these rights may be safeguarded even where an individual is unable to speak for him or herself. These are known in Connecticut as "advance health care directives" or "health care directives." Connecticut law also permits individuals to appoint a health care representative, make wishes known about end of life decisions, donate anatomical gifts and designate a conservator.

What are "advance health care directives?"

"Advance health care instructions" can include 4 parts. (1) a legal document that appoints an individual to express your health care wishes in the event that you are unable to do so yourself; (2) a legal document that expresses your end of life wishes known as a living will; (3) your wishes about anatomical organ and body donation; and (4) a designation of a conservator of the person.

APPOINTMENT OF YOUR REPRESENTATIVE

How can I make sure that my wishes are followed?

• The first important step is to select a person who will make health care decisions for you when you are unable.

• Next, you should discuss your wishes with that person.

If you sign a living will your health care representative will make sure it is followed. If you do not sign a living will, then your representative will make end of life decisions for you.

• If you choose to appoint such a person, it is very important that you let this individual know that you have given him or her this responsibility, and provide him or her, with copies of your living will.

 How do I appoint health care representative to express my wishes?

After you have selected a trusted individual, Connecticut law permits you to appoint in writing a "health care representative" who can make any and all health care decisions for you if you are unable to speak for yourself.

 Whom should I pick as the person who speaks for me?

• Above all, select someone you trust and can talk to honestly about your wishes.

• With the exception of staff of a health care facility in which you reside, staff of certain state agencies, and your witnesses, you may select anyone, including persons not related to you, to act as your representative.

• You may select and appoint anyone to represent you including persons not related to you EXCEPT: 1. staff of a health care facility in which you reside, 2. staff of certain state agencies, and 3. your witnesses to act as your representative.

 Can I revoke such an appointment?

 Yes. You may revoke your decision to appoint an individual to speak for you.

You must revoke an appointment in writing, and have that document (1) signed by two witnesses, and (2) signed and acknowledged (as appropriate) by a notary public, Conn. attorney, judge of court of record/family support magistrate, clerk or deputy clerk of court having a seal, town clerk, or justice of the peace.

LIVING WILL

What are living wills in Connecticut?

• In Connecticut, the legal document that expresses your wishes concerning end of life decisions is called a "living will."  A "living will" is a legal document that states your wishes regarding life-support systems and heroic measures in the event that you are terminally ill or permanently unconscious and unable to communicate.  It allows you to express your wishes concerning any and all end of life decisions.  This could include life-support systems, surgery, antibiotics or other medical treatments.

• A "living will" is very different from a regular will. A will disposes of your property at your death.

• A "living will" is not a "living trust." A "living trust" is a way of transferring your property to a trustee to hold during your lifetime and to dispense to your loved ones upon your death without probate.

 How does a "Do-Not-Resuscitate Order" (DNR) relate to a "living will"?

• A "living will" is a legal document that you sign that permits you to state your wishes regarding life-support systems in the event that you are terminally ill or permanently unconscious and unable to communicate.  It can provide that you want all available life supports, or, alternatively, that you wish to refuse certain or all life supports.

• A Do-Not-Resuscitate Order (DNR) is a doctor’s instruction to staff and/or emergency medical technicians that cardio-pulmonary resuscitation (CPR) should not be administered if you experience cardiac arrest. Any DNR order that is made should be consistent with the wishes that you express in your living will.

Do I have to sign a living will?

• No. Hospitals and nursing facilities are required by a Federal law known as the Patient Self-Determination Act to ask a patient upon admission if you have a living will or wish to execute one, but they cannot require you to sign one in order to receive care.

 Why should I have a living will?

• To make sure that your wishes are followed regarding medical care at the end of your life. A living will allows you to indicate which, if any, life support measures you wish to refuse if you are terminally ill or permanently unconscious and cannot communicate.

• To relieve your loved ones of the burden of making end-of-life decisions without knowing your wishes.

• To enable your doctor to follow your instructions. Without a living will, a doctor may be concerned that it may constitute medical malpractice if he or she withholds or removes treatment.

• To keep your private wishes on dying out of the probate court, where these disputes may end up. Without a living will, your family and medical care providers may disagree as to what care is provided or withheld.  If they don't all agree, there may be a court battle.

 When should I sign a living will?

• After you think about what you want and decided what your wishes are.

• After speaking with trusted advisors such as your spouse or life partner, family, friends, doctors, or a lawyer.

• Before you are in a crisis situation.

• At any time if you are mentally capable of understanding what you are doing.

 Who can advise me about a living will?

• You should discuss your living will and any other "advance health care instructions" with your family, doctor, attorney and clergy.

• Most importantly, you should definitely discuss your particular wishes with the person you appoint as your agent to speak for you if you cannot.

• If you have a particular illness or condition, talk to your physician or other counselor familiar with your disease. They can advise you of the likely stages of illness you can expect to confront and to consider what medical treatment may be at issue at each stage. You might want to consider a MOLST (Medical Order of Life Sustaining Treatment). Speak to your doctor about this.

 Do I have to use the "official" living will form?

• No. Connecticut law says that the living will must be "in substantially the statutory form", therefore you can use whatever form you want. To be valid, the form should be signed, dated, and have two witnesses. Otherwise there is still the chance that someone will feel the need to go to court to determine your wishes.

• Because Connecticut health care providers are most familiar with it, using the state form may mean that there is less likelihood of your wishes being misunderstood. Connecticut law provides both a stand-alone form (Connecticut General Statutes sec. 19a-575) and a combined form that includes additional advance directives including designation of health care representative, advance designation of conservator and anatomical gift (sec. 19a-575a).

 Should my living will be more specific than the "official" form?

• It's up to you. You can be as specific as you want. CT law allows for a MOLST (Medical Order of Life Sustaining Treatment). Speak to your doctor about this.If you have an illness that has a well-recognized course of symptoms, you may want to be very specific.

• You should generally address whether you want artificial means of providing nutrition and hydration (nasogastric or gastronomy tubes), artificial respiration (respirator, or breathing tubes -- intubation), or resuscitation.

• You can add instructions concerning chemotherapy, radiation, dialysis, antibiotics, or emergency surgeries to correct related or unrelated physical conditions.  If you want to receive care in hospice, that is something else you may wish to include in the living will. Check with the Hospice you choose about what care is allowed.

What if my wishes are not followed?

• The doctor and other health care providers are required to consider your wishes as expressed in your living will. If you don't have a living will, they are required to consult your health care agent to determine your wishes.  If you did not appoint a health care representative, then the doctor is required to consult family and other people that know you.

• If a doctor or hospital does not want to carry out your wishes, they are required to move you somewhere where your wishes can be followed. Connecticut General Statutes section 19a-580a.

• Keep in mind that you won't be able to be your own advocate if your living will is being used because you must have been judged unable to communicate your own health care wishes. That is why it is so important to appoint someone to present your living will and either to work with your doctor to get it implemented or move you to a setting in which it can be.

 What if I move to or travel in another state?

• Another state may have different laws, forms and procedures, so it is best to consult an attorney or prepare a new living will if you move from Connecticut to another state. 

• The United States Supreme Court has said that each state can decide what evidence is "good enough" to determine someone's wishes about end of life decisions. While Connecticut and most other states require doctors to consider even oral evidence of a patient's wishes, this is not the case in all states.

 If I have a living will from another state, do I need a new one?

• No, if the living will that you signed in another state is signed, dated, and there were two witnesses it will be recognized in CT.

• Connecticut law provides for a procedure through which Connecticut health care providers can accept and rely on "advance health care directives" executed in other states.

 My living will was not witnessed. Is that OK?

 Your unwitnessed living will might still be "evidence" which the doctor may consider. However, the physician or hospital might not rely on it and might have to go to the probate court for a determination that it reflected your wishes.

 My living will was not notarized. Is that OK?

• While Connecticut law requires that a living will must have two witnesses, notarization is not required.

• BUT, having it notarized is a good idea. The notary is there to verify that it was properly witnessed. If your living is was challenged in court, the witnesses will not have to testify to that fact.

 When is it too late to execute a living will?

• When you are no longer "of sound mind and able to understand the nature and consequences of health care decisions at the time the document was signed," as Connecticut law requires.

• Subject to this limitation, you can execute a living will up to "the last minute" and can always communicate your wishes orally.

 Can my living will be revoked?

• Yes, you can revoke it any time in any manner.

• Even if you can't speak you can revoke your living will in writing, by tearing it up or indicating by any other means that you wish to revoke it.

• The law requires that any hospital or institution make your living will a part of your permanent record, so if you want to revoke it, make sure that your doctor is informed.

Can an appointment of a health care representative be revoked? 

An appointment of health care representative may only be revoked by the declarant, in writing, and the writing shall be signed by the declarant and two witnesses.

The attending physician or other health care provider shall make the revocation of an appointment of health care representative a part of the declarant's medical record.

The revocation of an appointment of health care representative does not, of itself, revoke the living will of the declarant.\

 When is my living will effective?

• While a living will is a valid legal document as soon as it is signed, it may not be used so long as you have the ability to communicate your wishes.

• Your living will comes into play only (1) if you are "unable to understand and appreciate the nature and consequences of health care decisions, including the benefits and disadvantages of such treatment, and to reach and communicate an informed decision regarding the treatment," and (2) if your doctor certifies that you are in a "terminal condition" or "permanently unconscious."

 What does "terminal" mean?

• "The final stage of an incurable or irreversible medical condition which, without the administration of life support systems, will result in death within a relatively short time, in the opinion of the attending physician." Connecticut General Statutes section 19a-570(11).

• Please note that in Connecticut, Alzheimer’s disease, other dementias, and many chronic conditions are unlikely to be considered "terminal" unless a patient’s prognosis involves death within a short time.

 What does "permanently unconscious" mean?

• It "include[s] permanent coma and persistent vegetative state in which the individual is at no time aware of himself or the environment and shows no behavioral response to the environment." Connecticut General Statutes section 19a-570(10).

 What are "life support systems" that may be withheld if I have a living will?

• The law defines "life support systems" to mean "any medical procedure or intervention which, when applied to an individual, would serve only to postpone the moment of death or maintain the individual in a state of permanent unconsciousness. In these circumstances, such procedures shall include, but are not limited to, mechanical or electronic devices including artificial means of providing nutrition or hydration." Examples of "life support systems" include respirators, CPR and/or artificial means of providing nutrition and hydration, including feeding tubes.

 If I have a living will, will I receive pain medication and other comfort measures?

 Yes. "Comfort care and pain alleviation shall be provided in all cases."  Connecticut General Statutes section 19a-573(a).

DESIGNATION OF CONSERVATOR

What is a conservator?

• A "conservator of the person" is someone appointed by the probate court to supervise your "personal affairs" if you are incapable of caring for yourself or otherwise agree to it voluntarily.  "Incapable of caring for one's self" means "a mental, emotional or physical condition resulting from mental illness, mental deficiency, physical illness or disability, chronic use of drugs or alcohol, or confinement, which results in the person's inability to provide medical care for physical and mental health needs, nutritious meals, clothing, safe and adequately heated and ventilated shelter, personal hygiene and protection from physical abuse or harm and which results in endangerment to such person's health."

• Conservatorship is either voluntary (where you ask a Probate Court to appoint a conservator for you), or involuntary (where someone else asks a Probate Court to appoint a conservator on your behalf).

• Connecticut law requires that conservators comply with your "advance health care directives" and defer to any person whom you have already appointed to express your health care wishes if you cannot.

 What is the benefit of executing an advance designation of conservator document?

• If you designate a conservator, the court is required to follow your wishes, unless it finds the appointment of the person you chose is not in your best interests or the person you chose is unable to serve.

ANATOMICAL GIFTS

What is an "anatomical gift?"

• An anatomical gift is the donation of your body or organs to medical science or for transplantation.

• Under Connecticut law, unless you limit the reasons for an anatomical gift, your body, or parts of it, may be given "to a hospital, physician, surgeon or procurement organization, for transplantation, therapy, medical or dental education, research or advancement of medical or dental science"; or "to an accredited medical or dental school, college or university for education, research, or advancement of science"; or to a particular person if you specify a particular person who needs an organ.

• If you wish, you can specify that you only want to make a gift to "save life" or "for transplants."

• Keep in mind that unless you state in writing that they may not do so, your family has the right to make an anatomical gift after your death.

 How can I make an anatomical gift?

• You can make an anatomical gift in any one of three ways: (1) by signing a "document of gift"; (2) through imprint on your driver’s license; or by (3) by expressing those wishes in your last will and testament.

 What if I change my mind about the anatomical gift?

• You can revoke your anatomical gift only by a signed statement.

• Your family cannot revoke it for you.

• Even if you revoke the gift in the signed statement, you can reinstate your wish to make an anatomical gift orally if you develop a terminal illness or injury.

• If you have not included an anatomical gift in your advance health care directive documents, you can still make such a gift in one of the above-listed ways without having to have new documents prepared.

 How should I convey my wishes as to funeral arrangements, burial, or cremation?

• Your spouse or next of kin has the legal right to decide how your remains are disposed of, even if you have a burial contract for a particular form of disposal.

• However, if you are not married, you can designate a person to have custody of your remains (and the right to dispose of them), and in that case you can select someone who will carry out your wishes.

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Under age 60: Find legal help or apply online.
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