CONNECTICUT - ADVANCE DIRECTIVES (LIVING WILLS)

January 1, 2008

State laws and regulations that affect your medical practice

1. What is an advance directive?

An advance directive is a legal document through which an individual puts directions or preferences concerning medical care and/or appoints someone to act on the individual's behalf when the individual is unable to make or communicate decisions about medical treatment. In Connecticut, there are two types of advance directives: (1) the living will or health care instructions or (2) the appointment of a health care representative.

C.G.S.A. § 19a-570

No physician, health care provider or health care insurer shall require a person to execute a living will or appoint a health care representative as a condition of treatment or receiving health care benefits.

C.G.S.A. § 19a-580b

3. What is a living will?

A living will is a document that states an individual's wishes regarding any kind of health care. If an individual is in a terminal condition or permanently unconscious, the living will can tell the physician whether the patient wants to be kept alive with life support systems or does not want such treatment, even if the result is death. A living will goes into effect only when the patient is unable to make or communicate decisions about medical care.

C.G.S.A. § 19a-570

4. What does "permanently unconscious" mean?

"Permanently unconscious" means an irreversible condition in which the individual is at no time aware of himself or herself or the environment and shows no behavioral response to the environment and includes permanent coma and persistent vegetative state.

C.G.S.A. § 19a-570

5. What is the definition of a "terminal condition"?

"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.

C.G.S.A. § 19a-570

6. What is a life support system?

A "life support system" is a form of treatment that only delays the time of the patient's death or maintains the patient in a state of permanent unconsciousness. Life support systems may include among other things: devices such as respirators and dialysis; cardiopulmonary resuscitation (CPR); food and fluids supplied by artificial means, such as feeding tubes and intravenous fluids. It does not include normal means of eating and drinking, such as eating with assistance of another person or through a straw or medications that help manage pain.

C.G.S.A. § 19a-570

7. May a physician administer pain medication to a patient with a living will?

Yes. Comfort care and pain alleviation shall be provided in all cases.

C.G.S.A. § 19a-573

8. What if the patient is pregnant?

Despite a living will to the contrary, life support systems shall not be withheld from a pregnant patient.

C.G.S.A. § 19a-574

9. Will a physician face liability for removal of the life support system of a patient?

Any licensed physician who removes a life support system of an incapacitated patient shall not be subject to civil or criminal liability provided that (1) the decision to remove such life support system is based on the best medical judgment of the attending physician in accordance with the usual and customary standards of medical practice; (2) the attending physician deems the patient to be in a terminal condition or, in consultation with a physician qualified to make a neurological diagnosis who has examined the patient, deems the patient to be permanently unconscious; and (3) the attending physician has considered the patient's wishes concerning the withholding or withdrawing of life support systems. If the attending physician does not deem the incapacitated person to be in a terminal condition or permanently unconscious, beneficial medical treatment including nutrition and hydration must be provided.

C.G.S.A. § 19a-571

10. What if the physician is unwilling to comply with the patient's wishes?

An attending physician or health care provider who is unwilling to comply with the wishes of the patient shall, as promptly as practicable, take all reasonable steps to transfer care of the patient to a physician or health care provider who is willing to comply with the wishes of the patient and said sections.

C.G.S.A. § 19a580a

11. What is a health care representative?

Any person 18 years of age or older may appoint a health care representative by executing a document signed and dated by such person in the presence of two adult witnesses who shall also sign the document. The person appointed as representative shall not act as witness to the execution of such document or sign such document. A health care representative is authorized to make any and all health care decisions on the patient's behalf including the decision whether to withhold or withdraw life support systems.

C.G.S.A. § 19a-576

12. What kind of treatment decisions can be made by a health care representative?

If the attending physician determines that the patient is unable to understand and appreciate the nature and consequences of health care decisions or is unable to reach and communicate an informed decision regarding treatment, the health care representative is authorized to make any and all health care decisions for the patient, including the decision to accept or refuse any treatment, service or procedure used to diagnose or treat the patient's physical or mental condition, except as otherwise provided by law, and the decision to provide, withhold or withdraw life support systems. In the event the patient's wishes are not clear or a situation arises that the patient did not anticipate, the health care representative may make a decision in the patient's best interests, based upon what is known of the patient's wishes.

C.G.S.A. § 19a-575a

13. What is a conservator?

A "conservator of the person" is responsible for taking care of an individual's health and safety needs. A conservator also has the power to give consent for medical care, treatment and services. A conservator is either appointed by the Probate Court when the Court finds that a person is incapable of taking care of himself/herself or can be named in advance as the person an individual wants the Court to appoint if the individual becomes incapable of making his/her own decisions. A conservator must follow health care instructions as set forth in a living will. If there is both a health care representative and a conservator, the decisions of the health care representative will generally be followed.

Connecticut Office of the Attorney General, "Your Rights to Make Health Care Decisions"

14. Who can be named as a health care representative or conservator?

An individual may name anyone appropriate to serve as a health care representative. The following persons cannot be named as a patient's health care representative: (1) the patient's physician; (2) the operators, administrators and employees of a hospital or nursing home where the individual is a patient; or (3) an administrator or employee of a government agency responsible for paying the patient's medical care.

C.G.S.A. § 19a-576

15. When does a living will or appointment of health care representative become operative?

A living will or appointment of health care representative becomes operative when (1) the document is furnished to the attending physician, and (2) the declarant is determined by the attending physician to be incapacitated. At any time after the appointment of a health care representative, the attending physician shall disclose such determination of incapacity, in writing, upon the request of the person named as the health care representative.

C.G.S.A. § 19a-579

16. How is a living will or appointment of health care representative revoked?

A living will may be revoked at any time and in any manner by the declarant, without regard to the declarant's mental or physical condition. The attending physician or other health care provider shall make the revocation a part of the declarant's medical record.

C.G.S.A. § 19a-579a ( a ) & ( b )

17. What if a physician is unaware of the revocation of a living will?

In the absence of knowledge of the revocation of a living will, a person is not subject to civil or criminal liability or discipline for unprofessional conduct for carrying out the living will.

C.G.S.A. § 19a-579a ( c )

18. Does divorce or legal separation have any effect upon appointment of a spouse as a health care representative?

Yes. The appointment of the principal's spouse as health care representative shall be revoked upon the divorce or legal separation of the principal and spouse or upon the annulment or dissolution of their marriage, unless the principal specifies otherwise.

C.G.S.A. § 19a-579b

19. Who must be notified prior to removal of a patient's life support system?

Within a reasonable time prior to withholding or causing the removal of any life support system, the attending physician shall make reasonable efforts to notify the individual's health care representative, next-of-kin, legal guardian or conservator.

C.G.S.A. § 19a-580

20. What if there is a dispute concerning withholding or removal of a patient's life support system?

The Probate Court for the district in which the person is domiciled or is located at the time of the dispute shall have jurisdiction over any dispute. With respect to any communication of a patient's wishes other than by means of a document, the court shall consider whether there is clear and convincing evidence of such communication. The Probate Court for the district in which the person is domiciled or is located at the time of the dispute shall also have jurisdiction over any dispute concerning the capacity of the health care representative or over any claim that the actions of the person named as health care representative would interfere with the treatment of the declarant.

C.G.S.A. § 19a-580c

21. May a health care representative challenge a patient's revocation?

A person whose appointment as a health care representative has been revoked shall have standing to file a claim challenging the validity of such revocation with the Probate Court for the district in which the declarant is domiciled or is located at the time of the dispute.

C.G.S.A. § 19a-580c

22. What is a "Do Not Resuscitate" order?

A "Do Not Resuscitate" order or "DNR" order means an order written by a Connecticut licensed physician to withhold cardiopulmonary resuscitation, including chest compressions, defibrillation, or breathing or ventilation by any assistive or mechanical means including, but not limited to, mouth-to-mouth, mouth-to-mask, bag-valve mask, endotracheal tube, or ventilator for a particular patient.

C.G.S.A. § 19a-580d-1

Copyright Kern Augustine Conroy and Schoppmann, P.C. Used with permission.