Public Act 06-195 - Living Will Changes
The 2006 legislative session saw some important revisions to the Living Will & Health Care Representative statutes in Public Act 06-195 (Effective October 1, 2006). Here is a summary of some of the more significant issues. If you are signing a Living Will at any point in the future, definitely review the changes and make sure what you’ve prepared for your client is effective.
The Office of Legislative Research identified the significant changes as:
1. combined the authority of the health care agent and attorney-in-fact for health care decisions into a unified proxy known as the “health care representative”;
2. expanded the scope of a living will from covering only decisions concerning life support to include any aspect of health care;
3. conferred on the health care representative the authority to make any and all health care decisions for a person incapable of expressing those wishes himself;
4. clarified that (a) a conservator must comply with the previously executed advance directives of a ward and (b) a decision of a health care representative takes precedence over that of a conservator;
5. provided for recognition of advance directives validly executed elsewhere that are not contrary to Connecticut policy.
This is an important step in the unification of general health care decisions and life support being resolved in one document. More important than mere consolidation of forms, the new statute reflects the legislature’s desire to broaden the Health Care Representative’s authority in life and death decisions. Previously, the Living Will was primarily a documentation of a person’s wishes that only existed to be executed by their appointee if the principal was unable to do so. Simply put, if you did not describe your wishes for a specific situation in your Living Will, your Health Care Representative did not have the technical authority to make a decision in that given situation.
Now, the legislature has broadened the Health Care Representative’s ability to act with respect to decisions to provide, withhold, or withdraw life support systems. Specifically, the new statute allows the Representative to make the life or death decision if it is made in the principal’s best interests. The exact phrasing used in the statute is: In the event my wishes are not clear or a situation arises that I did not anticipate, my health care representative may make a decision in my best interests, based upon what is known of my wishes.
For practitioners as well as clients, another critical change is the requirements for revocation of an existing Living Will. The previous statute had a very liberal revocation standard. In Public Act 06-195, the revocation procedure is as follows: an appointment of health care representative may only be revoked by the declarant, in writing, and the writing shall be signed by the declarant and two witnesses. What does this mean? If you’re client already has a Living Will or other appointment of Health Care Representative and they are changing the fiduciary for that position, be sure to incorporate revocation language in the new Appointment that you are having them sign.
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