Who makes your health care decisions if you're incapacitated?

Aug 27 2023

By: John Drapp

Posted in: Estate Planning


Connecticut law gives you, as an adult, the right to make decisions about your own health care.  This includes the right to accept treatment, as well as the right to reject treatment, even if it may save your life.  But what if you’re unable to make these kinds of decisions for yourself?

There are two major reasons that you may be unable to make your own health care decisions.  The first is if you’re unconscious due to an illness or an accident, and the second is if you’re suffering from a mental impairment that limits your ability to understand the nature and consequences of health care decisions.  It’s not easy to think about, but if you were in one of these unfortunate situations, who would make health care decisions for you?

As you might have guessed, your family would normally make these decisions for you if you couldn’t make them for yourself.  “Family” would usually be your spouse or your children, but it might be your parents or extended family if you’re not married and have no children.  It’s hard to predict with certainty who might have to make health care decisions for you though since life is unpredictable and you can never be certain of the circumstances in which these questions may come up. 

Whoever it is that would ultimately make a health care decision for you – would that person, or those people, know for sure what you would want?  What if you have several family members that have different opinions about what you would want?  If that happens and an agreement can’t be reached, your family may find itself in a Probate Court arguing to a judge about what you would want.  That’s hardly an ideal situation even in the best of times and, let’s face it, if this type of situation presents itself, it’s most likely not going to be during the best of times.  In what would undoubtedly be a very stressful time for your family, the last thing they should be doing is running to a court to resolve a sensitive family matter.

There is a way to prevent this.  You can create a document now that directs what should happen if you’re unable to make health care decisions for yourself.  One of the documents that can be used for this purpose has four parts.

The first part is what’s called a living will or an advanced directive.  A living will specifies whether you want life support systems to be utilized to keep you alive if you’re permanently unconscious or if you have a terminal condition that your doctor or advanced practice registered nurse believes will result in death within a short period of time.   Examples of life support systems include cardiopulmonary resuscitation (CPR), artificial respiration (ventilator) and artificial nutrition and hydration (feeding tube).  Your living will can specify which life support systems, if any, that you want to be used to keep you alive if you are permanently unconscious or suffering from a terminal condition.  A living will allows you to make these decisions for yourself before the need arises. 

The second part of the document is the appointment of a health care representative.  You’ve probably heard different words used to describe this type of appointment, including “health care proxy” or “health care power of attorney,” but “health care representative” is the term used in Connecticut.  If you appoint a health care representative, that person would have the authority to make any health care decision for you that is not covered by your living will.  This includes decisions about whether to provide, withhold or withdraw life support systems and whether to accept or refuse any treatment, service, or procedure. 

It’s important to know that the authority of your health care representative to make health care decisions for you only becomes effective if your doctor or advanced practice registered nurse determines that you are unable to understand and appreciate the nature of health care decisions or are unable to reach and communicate informed decisions regarding your treatment. 

When you appoint a health care representative, you can also appoint someone as a backup health care representative.  Naming a backup is a good idea in case your primary health care representative is unavailable for any reason at the time a health care decision needs to be made for you. 

A person serving as your health care representative will have substantial authority to direct your medical care if you’re unable to do so yourself.  For that reason, it’s extremely important that you have a high level of trust in the people you name.  It’s also important that you discuss your preferences regarding medical care with these people ahead of time so that they’re prepared to make health care decisions for you if they’re ever called upon to do so. 

The third part of the document allows you to designate the person that you would like to serve as your conservator should you ever need one.  A conservator in Connecticut is a person appointed by a Probate Court to manage your personal and financial affairs if you’re unable to do so yourself.  Although you have the right to designate the person that you would like to serve in that role, the Probate Court has the final say as to who is appointed as your conservator.  Most of the time though, the Probate Court will appoint the person you name unless he or she declines to serve or the Probate Court determines that he or she would not be an appropriate person to serve as your conservator. 

Just as you can appoint a backup health care representative, you can also designate a backup conservator.  Again, this is a good idea in case the person you designate as conservator is unwilling or unable to serve in that role, or if the Probate Court refuses to appoint that person for any reason. 

When a conservator is appointed, he or she will be subject to oversight by the Probate Court.  Your conservator will be required to file periodic reports with the court detailing the status of your physical and mental health as well as any actions he or she takes on your behalf.  If your conservator is also managing your money, he or she will also have to file periodic accountings with the court detailing your assets, income, and expenses.  One important thing to note is that depending on the value of your assets, the Probate Court may require a bond from your conservator.  A bond is like an insurance policy to protect your assets from being misappropriated by your conservator.  If the Probate Court requires that your conservator post a bond, it’s likely that the bond company will require a credit check of your conservator.  If you have significant assets, it’s wise to consider the credit score of the people you designate as conservators because if they are unable to obtain a bond, they may not be able to serve as your conservator. 

Another important thing to know is that in most situations, a Probate Court only appoints a conservator after hearing evidence that convinces the court that you’re not capable of managing your own affairs.  Connecticut law requires that you have a lawyer represent you in the Probate Court because you have the right to object to the appointment of a conservator if you don’t think you need one.  If you’re unable to obtain your own lawyer, the court will appoint one for you.  If a conservator is appointed, you have the right to ask the court to remove your conservator if you’re able to demonstrate that you no longer need one. 

The final part of the document allows you to specify whether you wish to donate any of your organs upon your death.  You can donate any needed organs for any purpose.  You can also donate only specific organs.  You can even specify limited purposes for which you are donating organs.  For example, you can specify that you only wish to donate your pancreas for the purpose of diabetes research.  Of course, you can also specify that you do not wish to donate any organs.  The choice is entirely yours. 

This type of document is usually prepared at the same time that a last will and testament is prepared, but it can also be prepared as a stand-alone document.  Using this type of document as a planning tool helps ensure that you’ll know what will happen to you if you’re incapacitated for any reason.  It also helps prevent the possibility of family strife in the future because your intentions will be memorialized.  In short, although it’s not required, it’s advisable to have this document as part of your total estate plan. 

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