Frequently Asked Questions
What are Advance Directives?
Advance Directives are your specific written instructions regarding a number of health care related matters. It is very common today to be asked upon admission to a hospital or other long term care facility whether or not you have any Advance Directives of which the institution should be aware.
The most common instructions contained in written Advance Directives are the designation of a Health Care Representative and a Living Will. Connecticut also allows one to designate whether or not they wish to donate any needed organs or parts (make an anatomical gift) authorize cremation, or designate a particular person to take custody of remains.
What Does a Health Care Representative Do? (Is it the same as a Health Care Agent?)
Your Advance Directives allow you to name a "Health Care Representative" who will speak for you regarding your medical treatment if you are unable to do so yourself. Prior to 2006, the law only allowed for the appointment of a "Health Care Agent," whose job it was to enforce the terms of a Living Will, if you had one. The changes in the law recognize that there may be many situations in which your condition is not terminal, but you are still unable to communicate your decisions with respect to medical treatment (because you are unconscious or otherwise incapacitated in some way). In such event, the appointment of a Healthcare Representative lets you decide, in advance, who will make these important medical decisions for you. If your Advance Directives only appoint a Health Care Agent, it is a good idea to have them updated. Your appointment may not be invalid, but health care providers have different levels of comfort working with the old forms.
It is also important to recognize that Advance Directives aren't just for the elderly. Unexpected medical emergencies can happen at any time and at any age, so it is extremely important for all adults to have some form of Advance Directives in place, so they can make the important decisions regarding their own care.
What is a Living Will?
A Living Will states your specific instructions with respect to artificial life support. It is another part of your "Advance Directives" allowing you to choose whether you wish to be kept alive on life support, and removes the burden of painful decision making from others. In some instances, it can even prevent protracted legal battles fought because different individuals who are close to you disagree about "what you would want" under the circumstances.
A Living Will only takes effect only if you are you are incapacitated and unable to communicate your own wishes. Until then you remain in control over what treatments you do or don't want.
A Living Will also requires a certification by your treating physician that your condition is terminal or that you are in a permanent vegetative state and have no possibility of awakening. This means that in any situation where your condition is not terminal, that a signed Living Will would not prevent life sustaining treatment. For example, if you are unconscious following a heart attack or stroke, every effort would still be made to resuscitate you. A Living Will stating that you don't want life prolonging procedures is only used if and when it is determined that there is no hope of your recovery, and the only value of life sustaining measures would be to prolong life unnaturally.
What is an Anatomical Gift?
An "anatomical gift" is a donation of all or part of a body, after death, for the purpose of transplant, research, or education. The Uniform Anatomical Gift Act, which has been passed in some form in all 50 states, was enacted to facilitate increased awareness of organ donation, and to make the process easier by allowing individuals to elect to donate for themselves, rather than placing family and loved ones in the sometimes difficult position of making this choice at the time of death.
An anatomical gift can be of a specific organ to a specific person (assuming medically suitable); or it can also be more broad, to encompass "any needed organs or parts" to any suitable transplant recipient or medical institution. If desired, a donor may also restrict the purpose of a gift, by limiting it to "transplant" or "life saving purposes." Without such limitation, Connecticut permits donated organs to be used for transplantation, therapy, education, research or the advancement of science.
Who can make an anatomical gift?
Anyone over the age of eighteen (18) can decide to become a donor. Neither advanced age nor illness is automatically prohibitive. Medical professionals will evaluate the potential for organ and tissue donation on a case-by-case basis at the time of death. If donation is not appropriate, no gift will be made.
Will efforts to save my life be lessened if the hospital staff knows I have made an anatomical gift?
No. Recovery takes place only after all efforts to save your life have been exhausted and death legally declared. The doctors working to save your life are entirely separate from the medical team involved in recovering organs and tissues after your death.
Will an anatomical gift affect my memorial or funeral arrangements?
No. Donation does not typically delay funeral or memorial services. Donation also does not disfigure the body or change the way it looks in a casket. The removal of organs and tissues is performed by specially trained doctors and recovery staff. In most circumstances, even an open-casket viewing will still be able to take place.
How do I make an anatomical gift?
Under Connecticut law, an anatomical gift can be made in any one of three ways:
- By signing a "document of gift" in a form of Advance Directive;
- By signing the organ donation form on your driver's license; or
- By expressing those wishes in your Last Will and Testament.
Can I change my mind after making anatomical gift?
Yes. An anatomical gift can be revoked at any time by a signed written statement. But in such event, it is important that you make your wishes known by notifying the DMV, if you made the anatomical gift on your drivers' license, or by revoking the instrument in which you made the gift (Advance Directives or Last Will and Testament.
What Is a Power of Attorney and What Kind Should I Have?
A Power of Attorney allows a person or persons that you designate to act on your behalf as your agent. Your agent is called your "Attorney in Fact." The power you give to your Attorney in Fact can be extremely broad, allowing him or her to act in any situation in which you could act for yourself, essentially as your "alter ego." A Power of Attorney can also be more limited in scope. It can grant a specific power for a specific reason or time period.
Durable or Springing?
When considering whether to appoint an Attorney in Fact, you should consider whether you want your Attorney in Fact to be able to act on your behalf at any time; or whether you only want to appoint someone to act for you if you cannot act for yourself. A Durable Power of Attorney is effective as soon as you sign it, and remains effective even if you subsequently become incapacitated. The person you name as your Attorney in Fact can sign your name without consulting you, and that signature has the same legal effect as if you had signed the document for yourself. A Durable Power of Attorney also remains effective until you revoke it. Durable Powers of Attorney are often signed for convenience purposes. For example, it can allow spouses to conduct joint financial affairs when only one spouse is available to sign the pertinent documents, or attend a closing, etc. A Durable Power of Attorney should never be given to anyone that you do not trust completely with all of your personal and financial affairs.
A Springing Power of Attorney offers the same broad range of power provided by a Durable Power of Attorney, but only takes effect after one or more physicians pronounces you to be incapable of conducting your own affairs. Thus, the person named as your Attorney in Fact under a Springing Power of Attorney cannot act on your behalf in any capacity unless and until your doctor(s) pronounce(s) you incompetent.
This limitation can delay the use of a Springing Power of Attorney, because it requires one or more physicians to actually sign a legal certification of incapacity. Another potential downside of a Springing Power of Attorney is the resulting intrusion on the privacy of your medical affairs. To be effective, the Springing Power of Attorney must attach the legal certification of your incapacity. This certification will be circulated anywhere that the Power of Attorney is used.
Short Form or Long Form?
If you have ever seen a Power of Attorney, either for yourself or for someone else, it can take several different forms. Many states, including Connecticut, have defined the scope of a Power of Attorney by statute, and have created a specific legal form for the document. This is commonly referred to as a "Statutory Short Form" Power of Attorney. The advantage of using the Statutory Short Form is that the words and the format of the document are always the same. They are set forth in the statute. Many financial institutions are used to seeing this type of Power of Attorney and their employees know exactly what to look for in terms of ascertaining its validity. The disadvantage of the Statutory Short Form is that the language is very general, and may not address your particular needs or circumstances. The powers granted are described in broad terms, and if a particular power is not specifically listed, the Power of Attorney can be rejected. (For example, a bank teller might question whether the Statutory Short Form's authority to conduct "banking transactions" includes the power to access a safety deposit box. The Connecticut General Statutes are clear that it does -- but convincing the local bank teller that the form is correct may involve several telephone calls to your attorney and/or the bank's internal legal department.)
But a Power of Attorney does not have to be executed in the Statutory Short Form. The document can be manuscripted to cover many different special situations. This is often described as a "Long Form" Power of Attorney. It generally contains several more pages than the Statutory Short Form, but it can address situations that the Statutory Short Form does not. For example, the Long Form can address the needs of a closely held business, or the sale of a specific piece of property, or dealing with a revocable trust or the power to make gifts. These types of powers must be specifically granted. They are not covered by the Statutory Short Form. However, there are some drawbacks to the Long Form as well. Because a Long Form Power of Attorney is specifically drafted, it is not as common as the Statutory Short Form. A clerk or teller or other recipient may not have seen a Power of Attorney that looks exactly like yours, and may have questions about the format and whether the words used cover the specific situation.
In many cases, we recommend that clients execute two Powers of Attorney: one in the Statutory Short Form and the other a more specifically crafted Long Form. Many financial institutions are used to seeing the Statutory Short Form Power of Attorney, and their employees know exactly what to look for to ascertain its validity. The Long Form Power of Attorney is more specific, and can address situations that the Statutory Short Form does not. Because every situation is different, having both types of Powers of Attorney can help ensure that your Attorney in Fact is armed with the appropriate document for the situation.
What is a Will?
A Will is a legal document, signed with certain formalities (witnesses and often a Notary) that a person utilizes to provide for the orderly disposition of assets after death. Wills do not avoid probate. Wills have no legal authority until the Willmaker dies and the original Will is delivered to the Probate Court. Still, everyone with minor children needs a Will. It is the only way to appoint a guardian of an orphaned child.
A Will can also include special testamentary trust provisions to provide for the management and distribution of assets for your heirs. Additionally, provisions can be included to avoid or minimize estate taxes.
Please be aware that simply writing down your wishes and signing it does not create a valid a Will. Even if the instructions you provided are clear, the Probate Court will not be able to honor your wishes unless a Will is properly executed.
What does Intestacy mean?
If you die without even a Will (intestate), the State has already determined who will inherit your assets and when and how they will inherit them. You may not agree with that plan, but if you die without a Will, the law will determine who inherits your assets.