Advance Directives and Health Care Planning 

The reason you need an advance health care directive is to retain control even if you are incapacitated.  It is a legally binding document which expresses your wishes concerning health care decisions, and appoints an individual to express your health care wishes in the event that you are unable to do so yourself.  If you don’t have one, you are the mercy of the Hospital and the State.  You can change that with an Estate Planning Lawyer.

Living Will and Health Care Directive

As long as you are capable of making your own medical decisions, you have the right to receive or refuse medical treatment. However, if you are in a coma or have Alzheimer’s disease or have some other condition which prevents you from being able to communicate with your doctor about your own health care decisions, you need to have a written statement of your wishes and appoint the individual who is to carry out your wishes for you if and when you are unable to do so yourself. If you don’t have a “living will” and you don’t appoint a health care representative, your family and medical providers may disagree as to the care which should be provided to or withheld from you, and decisions may be made which are contrary to your wishes.  As in the Terry Schiavo case, an otherwise very private family matter could result in litigation and become a very public matter.

Living Will

A “living will” is a document which states your wishes regarding your health care (including the withholding or withdrawal of life-support systems if you have a “terminal condition” or are “permanently unconscious”), when you are unable to understand and appreciate the nature and consequences of health care decisions, and to reach and communicate an informed decision regarding treatment. “Terminal condition” means the final stage of an incurable or irreversible medical condition which, without the administration of a life support system, will result in death within a relatively short period of time, in the opinion of the attending physician. “Permanently unconscious” means an irreversible condition in which the individual is at no time aware of himself or herself or the environment and show no behavioral response to the environment and includes permanent coma and persistent vegetative state.

A “living will” is not a Last Will and Testament and is not a “living trust”. A “living will” states your wishes regarding your health care while you are alive; a Last Will and Testament disposes of your assets after your death; and a “”living trust” is a legal document you create to transfer assets into to be held by a trustee for distribution under the terms of the trust.

Appointment of Health Care Representative

The appointment of a Health Care Representative is another legally binding document in which you appoint another individual to make health care decisions for you in the event you are unable to make those decisions for yourself and to carry out your wishes under the “living will.”

When does a “living will” become effective?

A “living will” is valid as soon as it is signed, but it cannot be used as long as you have the ability to communicate your own health care wishes to your doctor and others; when you are “incapacitated, the “living will” becomes effective.

When is a Patient Considered Incapacitated?

Under Connecticut law, you are “incapacitated” when 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.

Who decides if I am “incapacitated” for purposes of invoking the “living will”?

Your attending physician makes that determination (i.e. your doctor or a doctor assigned to you and who has primary responsibility for your treatment and care).

What if my doctor or health care provider refuse to honor my wishes?

If a doctor or hospital is unwilling to comply with your wishes, Connecticut law states that you are to be transferred to a doctor or health care provider who is willing to comply with your wishes.

Decisions by My Health Care Representative

Your health care representative is required to first make decisions on your behalf in accordance with your wishes, either as stated in your “living will” or as otherwise known to him/her. In the event a situation arises that you didn’t anticipate, your health care representative may make a decision which is in your best interest ( but ultimately not necessarily what you would have wanted to happen in that circumstance).

Selection of a Health Care Representative

Selecting the individual who will have ultimate authority and responsibility for your health care decisions when you are unable to make those decisions yourself is very important. It is critical that you discuss your wishes and opinions regarding various health care matters with your health care representative in advance so that your health care representative will know or have a good idea about what your wishes are in the event a situation arises that is not clearly stated in your “living will.” It is also a good idea to appoint an alternate health care representative in the event the person you initially appoint can’t or won’t serve when the time comes, or in the event he/she predeceases you.

Do I need a lawyer to do a “living will” and appoint a health care representative?

You do not need a lawyer.  Connecticut law states that as long as the “living will” is in substantially the statutory form, you can use any form you want. However, to be valid, any form that is used must be signed, dated and witnessed by two people. In addition, since Connecticut health care providers are most familiar with the Connecticut statutory form, if the Connecticut statutory form is used, there is less likelihood that your wishes will be misunderstood. It is therefore advisable that you seek the advice of an attorney and execute the “living will” and appointment of health care representative in the presence of an attorney to avoid your “living will” from being declared invalid.

Where to Keep your Living Will and Health Care Directive

A copy of each document (or the combined form, if that is used) should be given to your primary care physician, to your family, and to the individuals you have named as your health care representative and alternate health care representative. Your doctor will make the documents part of your medical records. The original documents should not be put into a safe deposit box at a bank, but rather kept in a safe location for easy access in the event the original documents are needed any day of the week, at any time during the day or night.

Connecticut and New York have similar laws, but they vary slightly.  So, there may be minor differences if you live in Easton, CT or Bedford, NY.