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What are Advance Directives?

Sullivan & Griffith • Serving Families and Individuals in Guilford, New Haven and Madison, CT


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 your 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 Conservator and
Why Should I Designate One?

A Conservator is someone officially appointed by the Probate Court to be legally responsible for you. Some states use the term "guardian" in place of Conservator. In either case, the Court's appointment officially charges the designated person with making legal decisions for you. You will no longer be authorized to make them for yourself. Unlike the appointment of an "Attorney in Fact," which can be accomplished without any Court involvement by simply signing a Power of Attorney; because the appointment of a Conservator involves the complete transfer of legal responsibility for your actions to another person, the appointment must be made by the Probate Court. Only the Probate Court is authorized to determine whether you are still capable of caring for yourself; and if you are not, to appoint someone to care for you.

Designating someone in advance to be your Conservator does not make it any more likely that a Court will ever appoint one. Indeed, in many cases, having a Power of Attorney or a Trust that names Successor Trustees will allow someone to take care of your financial affairs without any Court intervention. However, should the Court ever need to become involved and determine that the appointment of a Conservator is necessary; having an Advance Designation of Conservator tells the Court who you would like to serve in this capacity -- as opposed to having the Court decide this important matter without knowing your wishes.

There are two types of Conservators, and they have different of jobs. A Conservator of Your Person is charged with your physical well being. He or she would make decisions regarding where you should live and how you should be cared for. Again, the only time that a Conservator would make these decisions for you is if the Court had already decided that you were not legally competent to make those decisions for yourself.

The other type of Conservator is a Conservator of Your Estate. This person is charged with managing your financial affairs. The Conservator of Your Person and the Conservator of Your Estate can be the same person, or they can be different people, depending upon what the Probate Court believes is in your best interest. If you have signed an Advance Designation of Conservator, you get to decide who has responsibility for taking care of your physical well being and your financial well being. You can decide whether it would be best to have the same person handle both jobs, or whether those responsibilities should be divided between the people that you select to name.

Why Do I Need (or Should I Want) a HIPAA Authorization?

The Health Insurance Portability and Accountability Act (HIPAA) was passed by Congress in 1996. It was primarily intended to prevent the termination of medical insurance coverage for employees and their families when they change or lose their jobs. But the statute also established national requirements protecting the privacy of our medical information. You have probably seen (and been required to sign) many disclosure forms from doctors, dentists and any other medical treatment provider stating that such provider fully complies with the requirements of HIPAA.

While almost every part of HIPAA is designed to protect you, one unintended "downside" of the statute is that information regarding your medical care is so private, that not even your loved ones can have access without your express permission. This can be easily accomplished under most circumstances, by your verbal or written authorization. However, if you are unconsciousness, and cannot provide this authorization, a doctor or hospital will not be able to release information about your condition or care. This means that your loved one may call a hospital or other medical facility where you have been admitted, and not be able to learn anything about your condition.

This can be avoided by having a HIPAA Authorization Form signed in advance. It is essentially a "permission slip" granting permission to the person or persons named specifically in the document to access information regarding your medical condition and/or care. The Authorization Form allows your doctors to communicate freely with the persons you have authorized, without the fear that they are violating your right to privacy. The Form also permits the persons you have authorized to obtain copies of your medical records from any medical provider. Having this advance authorization in place, can save considerable time and frustration for loved ones trying to collect information related to your care at an already stressful time. Of course, as with any document in which you are providing access to otherwise private and confidential information, you should carefully consider who you would like to name as "authorized persons" able to access this sort of information.

Guilford, CT estate planning law firm, Sullivan & Griffith, offers comprehensive life planning through estate wills & trusts, revocable living trusts, probate avoiding planning, estate administration, trust administration services, trustee and fiduciary services, estate tax planning, trust funding, charitable planning, business success planning, limiting liability planning, asset protection, special needs planning, and Medicaid application and services. Their office is located in Guilford, CT - they have served families and individuals all through Connecticut - including New Haven, Madison and Branford, CT.

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Sullivan & Griffith, LLP

Address:
705 Boston Post Road
Guilford, Connecticut 06437

Phone:
203-453-1490

Email:
info@sullivan-griffith.com

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