CLRP

Protecting Treatment Preferences: Advance Directives

An advance directive for health care is a legal document which allows people 18 years of older who have the capacity to make legal and/or medical decisions to indicate their treatment preferences and express those preferences and designate a health care representative to make decision on their behalf if they are unable to do so.

Health care representatives can be a family member or a close friend who are trusted to make serious decisions. The person appointed should clearly understand the wishes of the person making the appointment and be willing to accept the responsibility of making medical decisions. The health care representative cannot be an attending physician; an operator, administrator or employee of a health care facility, unless s/he is related by blood, marriage, or adoption.

A health care representative is appointed to carry out the health care decisions and preferences of the person making the appointment if that person unable to give informed consent. A health care representative can accept or refuse any treatment, service or procedure used to diagnose or treat physical or mental condition, except as otherwise provided by law. A health care representative makes decisions stated in the advance directive. In addition, if preferences are not clear or a situation arises that was not anticipated, a health care representative can make a decision based on discussions about individual preferences.

An advance directive can cover any individual preferences regarding any treatment, including electroshock (electroconvulsive therapy or ECT), a particular brand of medication, or any aspect of health care. Most of the time those stated preferences will be followed. Sometimes the law allows preferences to be overridden, such as in emergency situations. Sometimes preferences alone cannot make something happen, like giving the person a single room when insurance won’t cover it.

No insurer, physician, mental health treatment provider, or conservator can force a person to make an advance directive.

An advance directive for health care takes effect only when a primary physician decides an individual is unable to give informed consent. That means the physician believes the person is incapacitated to the point where he/she can no longer actively take part in decisions, and unable to direct the physician as to medical care. 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.

An advance directive can include a living will which covers “end of life” treatment decisions. It is not required to be part of the advance directive.

Under state law, there are legal requirements that must be met to complete an advance directive. The document should have your signature, the signature of two witnesses and a notary public, and the date the form was signed.

A living will and wishes concerning any aspect of health care, including the withholding or withdrawal of life support systems may be revoked at any time and in any manner without regard to mental status. The requirements for changing an advance directive are the same as those for creating one. However, the appointment of a health care representative can only be revoked in writing, with the signature of person making the appointment and the signature of two witnesses. The revocation of the appointment of a health care representative does not, of itself, revoke health care instructions.

A person completing an advance directive can specify who he/she would prefer to be appointed as conservator if one is being appointed. The Probate Court will consider the recommendation and should follow it unless there is a reason not to do so.

Except as authorized by a court, a conservator shall comply with a ward’s individual health care instructions and other wishes, if any, expressed while the ward had capacity and to the extent known to the conservator. A conservator may not revoke an advance directive unless the Probate Court expressly so authorizes.

Connecticut has state laws that support an individual’s right to self-determination, and legal action can be taken to have the instructions in the advance directive or an individual’s other expressed preferences respected and followed.