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 make wishes known
about donation of anatomical gifts and disposal of their remains.
What are "advance health care directives?"
- "Advance health care directives" can include (1)
a legal document that expresses your wishes concerning health care; and (2) a legal
document that appoints an individual to express your health care wishes in the event that
you are unable to do so yourself.
I understand there are changes in
Connecticut law regarding "advance health care directives" as of October 1,
2006. What if I have already completed Connecticut "advance care directives? Do the
changes mean that I have to complete new forms?
- While it is helpful to review and consider updating your
"advance health care directives" on a regular basis, the changes in law which
went into effect on October 1, 2006 specifically state that previously executed
Connecticut forms remain valid.
What "advance health care
directives" are used in Connecticut?
- In Connecticut, the legal document that expresses your
wishes concerning health care 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
health care 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 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 forego
certain or all life supports.
- A Do-Not-Resuscitate Order (DNR) reflects 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.
Must I have or sign a living will?
- No. Hospitals and nursing facilities are required by a
Federal law known as the Patient Self-Determination Act to ask on admitting you as a
patient 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 that you wish to forego if you are terminally ill or
permanently unconscious and cannot communicate. If you complete a living will on or after
October 1, 2006, you can indicate in it your wishes about any and all health care
decisions.
- 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 otherwise 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 long, expensive and agonizing court battle.
When should I sign a living will?
- After you've thought 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 directives" with your family, doctor, attorney and
clergy.
- Most importantly, you should definitely discuss your
particular wishes with the person you designate 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.
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, any form that is selected should, however, 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.
If you have an illness that has a well-recognized course of symptoms, you may want to be
very specific. For example, the University
of Toronto Joint Centre for Bioethics has sources online that suggest particular
instructions you may wish to include if you have cancer, HIV, or other diseases.
- 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.
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 family to determine your wishes.
- If they do 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 so it is important it is 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 probably best to consult an attorney or prepare a new living will if
you move from Connecticut to another state. You can also download forms and
instructions free of charge for each of the fifty states from a web site sponsored by the National Hospice and Palliative Care
Organization.
- 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 some most other states require doctors
to consider even oral evidence of a patient's wishes, this is not the case in all states.
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.
- 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.
- Notwithstanding, having it notarized is a good idea.
The notary is really there to verify that it was properly witnessed. If your
living will were ever challenged in court, the witnesses would 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.
- 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.
- BUT, 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.
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).
How can I make sure that my wishes are
followed?
- The first important step is to execute a living will.
- Next, Connecticut law enables you to appoint a trusted
individual to convey to your doctor the wishes that you express in a living will.
- 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, and your treating doctors, with copies of your
living will.
How do I appoint an individual to
express my wishes?
- After you have selected a trusted individual, Connecticut
law permits you to appoint 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
frankly 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.
- Although you may name more than one person as your
representative, be aware that physicians strongly prefer to work with one primary
decision-maker. Also, be sure that the legal documents state whether they must all
agree as to your medical care, or whether any one of them can decide separately.
Can I revoke such an appointment?
- Yes. You may revoke your decision to appoint an individual
to speak for you as follows:
- Health Care Agent (appointed before October 1, 2006):
- You may revoke appointment of a health care agent at any
time and in any manner.
- Divorce, legal separation, annulment, or dissolution
revoke appointment of your spouse as health care agent unless you have specified otherwise
in the signed document.
- Power of Attorney:
- You must revoke a power of attorney 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.
- Health Care Representative.
- You must revoke an appointment of health care
representative in writing, and have that document signed by two witnesses.
- Divorce, legal separation, annulment, or dissolution
revoke appointment of your spouse as health care representative unless you have specified
otherwise in the signed document.
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).
- Effective October 1, 2006, 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.
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 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.
Back to the Top of
the Page
Historical
Information on Living Wills and Advance Directives
History of "Informed Consent"
As early as 1891 the Supreme Court recognized the right
of every individual to "possession and control of his own person, free from all
restraint or interference of others, unless by clear and unquestionable authority of
law." Union Pacific Ry. v. Botsford. The famous and eloquent justice Cardozo
wrote: "Every human being of adult years and sound mind has a right to determine what
shall be done with his own body." Schloendorff v. New York Hospital (NY 1914)
(quoted with approval by the Connecticut Supreme Court in Logan v. Greenwich Hospital
Assn. (1983)).
Out of the doctrine of informed consent came legal
remedies against doctors who failed to obtain consent. In 1935, the Connecticut Supreme
Court held in Schmeltz v. Tracy that surgery without consent is legally an assault.
More recently, the Court held that operating without obtaining informed consent is the
basis of a claim of malpractice against a physician. Lambert v. Stovell (1987).
The problem is that consent usually requires the
individual to make his or her own choice after disclosure by a physician of the
"nature" of the procedure, the "risks" and "hazards" of the
procedure, and the anticipated "benefits" of the procedure. Logan v Greenwich
Hospital Assn., (1983). Our Appellate Court has held that "the physician
is thus charged with the duty to disclose to the patient that information that 'a
reasonable patient would have found material for making a decision whether to embark upon
a contemplated course of therapy.'" Gemme v. Goldberg, (1993). If a
person is unconscious, this test can't be met.
The other problem historically is that it wasn't clear
whether the right to refuse treatment included the right to ask to have treatment discontinued
that had already begun (like a respirator). Doctors were afraid of being held responsible
with the patient's death, especially because beneficial care is required.
The Doctrine of "Substituted Judgment."
With the idea of "informed consent" replacing
the old views that "doctor knows best," it was practically necessary to come up
with another approach to deal with those situations when the patient could not
provide or refuse consent. Thus, the doctrine of "substituted judgment" --
designating who might, and when they might, exercise judgment as your
"substitute."
The first choice was next-of-kin. The statutory
definition is: "any member of the following classes of persons, in the order of
priority listed: (A) the spouse of the patient; (B) an adult son or daughter of the
patient; (C) either parent of the patient; (D) an adult brother or sister of the patient;
and (E) a grandparent of the patient." Section 19a-570(8)
of the Connecticut General Statutes. In many cases involving end-of-life decisions, the
courts allowed next-of-kin to exercise "substituted judgment" for patients.
Whether the idea was that family would best know what the patient would have wanted
in that situation, or whether the idea was that the family was the most common-sense
substitute to make the decision even without knowing, isn't always clear. In the
well-known case of Karen
Ann Quinlan -- a young woman fell into a coma after mixing drugs and alcohol, and her
family asked that she be taken off life-support -- the New Jersey court clearly allowed
the family to substitute its judgment for her views, which were unknown.
Also, the State in a sense exercises "substituted
judgment" by making certain assumptions about what patients want. For example,
if a patient's wishes cannot be determined, "beneficial medical treatment including
nutrition and hydration must be provided." Section 19a-571(a)
of the Connecticut General Statutes.
The statute that now gives us the right to select a
"health care representative" is based on the same concept, that without giving
up the idea of requiring consent, there are times when it isn't possible to get an
individual's consent. The law now lets you pick the persons who can exercise
"substituted judgment" on your behalf.
History of Living Will Statutes.
The State of Connecticut in 1985 first enacted the
"removal of life support systems act." The statute included an optional form of
"living will" to make it easier for people to indicate these wishes. This
was expanded in 1991, 1993 and again in 2006 to the present form. Why was it
enacted? (1) to protect doctors that withdrew life-support from risk of liability
under the statute requiring life-saving treatment to be provided in all cases; and (2) to
encourage individuals to express their wishes concerning the withholding of treatment so
that the courts would not be left to decide these difficult and personal questions.
We have had several cases in Connecticut interpreting the
statute, which was renamed the "Living Will Act." One such case was McConnell
v. Beverly Enterprises (Connecticut, 1989). In the McConnell case, the
Connecticut Supreme Court stated in its decision that "the right to refuse medical
treatment is a right rooted in this nation's fundamental legal tradition of
self-determination." The court decided also that "medical treatment"
could include artificial nutrition and hydration, based on testimony that Mrs. McConnell,
a registered nurse, had said on numerous occasions she would not want feeding tubes.
The U.S. Supreme Court finally gave constitutional
protection to the "right to die" in Cruzan vs. Missouri (1990). In the Cruzan decision, the
court recognized a competent patient's constitutional right, under the Fourteenth
Amendment, to refuse medical treatment, but held that this right must be balanced against
a State's competing interests, and that a State had a right to (a) require "clear and
convincing evidence" of an incompetent patient's wishes and (b) decline to accept the
decision of a surrogate exercising "substituted judgment. Thirty-three year old
Nancy Beth Cruzan had been severely injured in an automobile accident; her parents asked
that artificial nutrition and hydration cease. Ultimately their decision was
vindicated and she died 12 days after feeding tubes were removed.
In 1994, Congress passed the Patient Self-Determination
Act, acknowledging patients' general rights to refuse medical treatment even if refusal
results in death. The Act requires medical facilities (receiving federal funding
such as Medicare or Medicaid) to inform patients about their rights under state law to
make decisions concerning medical or surgical treatments and to execute advance
directives. This is why you are always asked if you have a living will when you
enter a health care facility. The Act does not require you to sign a living
will or other advance directive, or permit the facility to require it.
The Connecticut statute on living wills and advanced
directives is now a "soup to nuts" form that permits you to (1) express your
wishes about end-of-life decisions; (2) designate a "health care representative"
to make sure your wishes are known and apply them in specific situations; (3) give
this representative the power to make health care decisions other than "end of
life" decisions; (4) designate a conservator of the person to act in your best
interests if one must be appointed by the probate court; and (5) specify your wishes
regarding anatomical gifts in the event of your death. You can modify the form --
for example, to designate a conservator of your estate, or to express your religious
wishes regarding end-of-life decisions, medical treatment, etc.
Back to Advance Directives Home
|