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Summary Discussion of Advance Directives
Summary Discussion of Advance Directives
I am Jeanette Schreiber, a partner in the law firm of Wiggin & Dana. I have been practicing health law in Connecticut for eighteen years and I am Co-chair of the Law & Ethics Task Force of the Connecticut Coalition to Improve End-of-Life Care. Through the Law & Ethics Task Force, we are working together to identify improvements needed in Connecticut laws relating to end-of-life care. One of our focus areas is advance directives, which are the legal mechanisms available for people who wish to make their wishes known in advance concerning health care decisions that may be made about their care at the end of life.
The availability and enforceability of advance directives, such as living wills or appointments of health care agents, is governed by state law and can vary significantly state to state. In Connecticut we have three different vehicles for making one’s wishes known which can operate together in a somewhat patchwork nature.
Living Will.
First is the “living will,” which allows a person while still competent to execute a document stating that if he becomes incapacitated in the future and cannot make decisions for himself, and if he is in a terminal condition or permanently unconscious, he wishes to allowed to die and not be kept alive through life support systems. This form allows an individual to specify particular types of life support systems to be covered, such as respirators or artificial nutrition and hydration. Connecticut’s living will law was originally enacted in 1985 and has evolved over the years.
Health Care Agent.
Secondly, a person can designate a “health care agent” by appointing an individual to act in the event of the person’s incompetence if he is later in a terminal condition or permanently unconscious. The health care agent is specifically appointed to act only in end-of-life decisionmaking involving the withholding or removal of life support systems and only to communicate the wishes as expressed previously by the individual before becoming incompetent. As such I consider the health care agent to be a “walking, talking living will.”
Durable Power of Attorney for Health Care.
Additionally in Connecticut an individual can appoint one or more specific persons to serve as his “attorney(s)-in-fact” with respect to health care decisions. This power is known as a durable power of attorney for health care and can be exercised only if the individual later becomes incapable of making his own decisions. Unlike a health care agent, an agent holding a durable power of attorney for health care can exercise his own judgment on behalf of the individual in giving, refusing or withdrawing consent to medical treatment. However, by law an agent holding this power is precluded from making decisions regarding withdrawal of life support systems, withdrawal of food and fluids, or medical treatment designed solely to maintain physical comfort. As such the durable power of attorney for health care is not a particularly useful tool in planning for end-of-life care.
Combined Advance Directives Form.
Finally there is a statutory form available that combines all of these powers into a single form and also makes available other designations including donation of anatomical gifts or designation of an individual to be appointed conservator of person in the event of future incapacity.
These forms provide several useful tools for making one’s wishes known. Unfortunately, however, understanding the combination and interrelationship of these several forms and powers can be confusing at times. The Law and Ethics Task Force is looking into ways to make these forms and powers more clear and easily understood.
If an incompetent person did not previously execute any type of advance directive or even express his wishes concerning end-of-life care, under Connecticut law his family members are still legally permitted to make decisions on his behalf including decisions to withhold or withdraw life support systems. However, anyone who feels strongly about not wanting to be kept alive through life support systems should seriously consider executing a living will and appointing a health care agent. Copies of any advance directives should be left with close family members and with your physicians. Executing advance directives can also make life a little easier for your family members if they are ever in a position of making a decision on your behalf to withhold or withdraw life support.