AN ACT CONCERNING HEALTH CARE DECISION-MAKING.

1. combining 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. expanding the scope of a living will from covering only decisions concerning life support to include any aspect of health care;

3. conferring 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. clarifying 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. providing for recognition of advance directives validly executed elsewhere that are not contrary to Connecticut policy; and

6. specifying that advance directives properly executed before October 1, 2006 remain valid.

The bill requires the secretary of the state to establish an advance health care directive central registry. Individuals could store various documents addressing health care decision making and instructions in this registry. Under the bill, the secretary of the state and any agent or person employed by her is not liable or subject to causes of action arising out of administration or operation of the registry

EFFECTIVE DATE: October 1, 2006, except that the provision requiring the Secretary of the State to establish the advance health care directive registry takes effect upon passage.

The bill defines “advance health care directive” as a writing executed according to law including a living will, an appointment of a health care representative, or both. “Appointment of a health care representative” is a document that complies with the law that someone executes appointing a health care representative to make health care decisions for him in the case his incapacity. A “health care representative” is the representative a person appoints to make health care decisions on his behalf.

The law allows anyone at least 18 years old to execute a document containing health care instructions, the appointment of a health care agent, the appointment of an attorney-in-fact for health care decisions, the designation of a conservator of the person for future incapacity, and a document of anatomical gift (CGS § 19a-575a). The maker must sign the document in the presence of at least two witnesses whose signatures also must be included. (This statute provides a sample document. ) Another statute (CGS § 19a-576) authorizes a person 18 or older to execute a document appointing a health care agent under the preceding statute or under CGS § 19a-577. The latter statute states that the document may, but need not be, in substantially the same form contained in the statute. A living will or appointment of a health care agent becomes operative when the document is furnished to the attending physician and he determines that the patient is incapacitated.

This bill replaces references to health care agent and attorney-in-fact with “health care representative” throughout the applicable statutes and in the related document forms.

EXPANDING THE SCOPE OF A LIVING WILL AND GIVING THE HEALTH CARE REPRESENTATIVE CERTAIN AUTHORITY

The bill expands the scope of a “living will” from covering only decisions involving life support to include any aspect of health care, including the withholding or withdrawal of life support systems. It gives the health care representative the authority to make any and all health care decisions for a person who is incapacitated to the point where he can no longer actively take part in decision-making and cannot direct his physician as to his medical care. The health care representative can decide to accept or refuse any treatment, service, or procedure used to diagnose or treat a physical or mental condition, including psychosurgery or shock therapy. The person can direct his health care representative to make decisions on his behalf according to his wishes, as stated in the executed document, or as otherwise known by the representative. In the event that the person's wishes are not clear or an unanticipated situation arises, the health care representative can make a decision in the person's best interests, based upon the representative's knowledge of the person.

Under the bill, an appointment of a health care representative can only be revoked by the declarant in writing, which must be signed by the declarant and two witnesses. Current law, unchanged by the bill, provides for the revocation of the appointment of a spouse as a health care agent upon the divorce or legal separation of the couple, unless the person specifies otherwise.

The bill requires the attending physician or other health care provider to make the revocation a part of the person's medical record. A person who carries out an advance directive is not subject to civil or criminal liability for unprofessional conduct if he does not have knowledge of the revocation of a health care representative appointment. The bill specifies that the revocation of the health care representative appointment does not, of itself, revoke the person's living will.

Under the bill, the probate court for the district in which the person is domiciled or located at the time of a dispute over a person's health care has jurisdiction over any dispute concerning the capacity of the health care representative, any claim that the actions of the named representative would interfere with the person's treatment, or the person named as health care representative.

Under the bill, a person whose appointment as a health care representative has been revoked has standing to file a claim challenging the validity of the revocation. He must file this with the probate court for the district in which the declarant is domiciled or located at the time of the dispute.

The bill requires a conservator to comply with a ward's individual health care instructions and other wishes expressed while the ward had the capacity to do so and to the extent known to the conservator, except as authorized by a court of competent jurisdiction. The conservator cannot revoke the ward's advance health care directive unless the appointing court expressly authorizes it.

Unless there is a court order to the contrary, the bill gives a health care decision of a health care representative precedence over that of a conservator's, except when (1) the health care decision concerns persons subject to the laws on examination of certain persons for psychiatric disabilities, temporary leaves or conditional release of acquitees in hospitals for psychiatric disabilities, or competency to stand trial; (2) a conservator has been appointed for a ward who is subject to an order concerning administration of medication for treatment of psychiatric disabilities, for the duration of the ward's hospitalization; or (3) a conservator has been appointed to a ward subject to an order concerning medication administration to a criminal defendant placed in the custody of the commissioner of mental health and addiction services.

Under the bill, health care instructions, or the appointment of a health care proxy executed under and in compliance with another state's or Connecticut's laws and not contrary to Connecticut's public policy of this state, are deemed validly executed for purposes of Connecticut law. Similarly, health care instructions or appointments executed in a foreign country and meeting the conditions above are deemed validly executed for Connecticut purposes.

A health care provider can rely on such instructions, or recognize the health care proxy appointment, based on any of the following: (1) an order or decision by a court of competent jurisdiction, (2) the health care provider's own good faith legal analysis, or (3) presentation of a notarized statement from the patient or person offering the proxy that it (a) is valid under the laws of the state or country where it was made and (b) is not contrary to Connecticut public policy.

The bill requires the secretary of the state to establish and maintain an advance health care directive central registry. Individuals can submit a copy of any of the following for inclusion in the registry:

1. documents with directions about administering, withholding, or withdrawing specific life support systems or any other document created according to the law on removal of life support;

2. documents with health care instructions, the appointment of a health care representative, the designation of a conservator of the person for future incapacity, and a document of anatomical gift; and

3. statutory short form powers of attorney created according to law.

A document submitted to the registry must be accompanied by a form prescribed by the secretary of the state that contains (1) the registrant's full name and mailing address and (2) an indication of the advance health care directives that the registrant is submitting. The secretary can prescribe other forms as deemed necessary. Documents are deemed submitted to the registry only when accompanied by the necessary forms.

Following receipt of a document, the secretary can reproduce and index it. Each indexed document must be assigned a unique identifying number and password. Following indexing, the document must be returned to the person who submitted it along with a form from the secretary containing the document's file number and password.

The secretary must not review or provide any advice on the documents, including whether the documents are in compliance with applicable statutes.

The bill specifies that its provisions should not be construed as invalidating (1) documents containing advance health care directives not submitted to the registry or (2) otherwise valid revocations of such documents where the secretary has been notified of the revocation.

The bill provides that entering the document in the index does not (1) affect its validity in whole or on part; (2) relate to the accuracy of information in the document; or (3) create a presumption regarding its validity, the accuracy of information in it, or that the statutory requirements for the document have been met.

Under the bill, the secretary can only disclose information in the registry or index to those with a valid document file number and password.

The bill specifies that any document or record included in the registry, including file numbers, passwords, and any other information maintained by the secretary, is not a public record and should not be disclosed under the Freedom of Information Act.

Yea

Nay

(03/20/2006)