BOSCARINO, GRASSO & TWACHTMAN LLP

Advance Directives

The following memorandum was distributed by Attorney John Grasso in support of his presentation at a recent seminar of the RHAM Education Foundation, Inc. titled "Late Life Care Alternatives and Resources for Elderly Persons and their Families".

Advance Directives are your written instructions, your "directives", by which your wishes are made known regarding who is empowered to make health care decisions on your behalf, and, separately, regarding what artificial life support systems you do want, and do not want, to be utilized to keep you alive in the event that the medical consensus is that you are either permanently unconscious, or are both unconscious, and "terminal", highly likely to die within hours or days regardless of what life support systems may keep you alive temporarily.

Obviously such instructions must be prepared while you are able to communicate your wishes, before you are in such a medical condition. Because such a condition may occur without warning, it is unwise to wait until you are unwell to prepare Advance Directives.

The following Advance Directives should be considered:

  1. Appointment of a Health Care Representative : This is the person who will make decisions regarding your medical care and treatment if in the opinion of your physician, you do not possess mental capacity. You need not be unconscious to lack mental capacity. You may be conscious, but in the opinion of your physician, nonetheless unable to understand and appreciate the nature and consequences of health care decisions and to reach and communicate an informed decision regarding treatment. An alternate, a person who will serve if your first choice cannot serve or does not wish to serve, may be named.
  2. Designation of a Conservator : In the event you become mentally disabled, the Probate Court may appoint someone to serve as your Conservator. You may designate who you wish that person to be, and the Probate Court will very likely appoint that person. There are two "types" of Conservator : A Conservator of the Person, and a Conservator of the Estate. The Conservator of the Person is granted authority to make decisions regarding where you will live, and regarding your physical welfare generally, subject to oversight by the Probate Court, and subject to the more specific authority granted to a Health Care Representative. The Conservator of the Estate is granted authority to make decisions regarding your finances and your property, subject to oversight by the Probate Court. Often these two roles are filled by the same person. Alternates may be named. In the absence of an Appointment of Health Care Representative, a Conservator of the Person will possess the authority to make decisions regarding medical care and treatment.
  3. Living Will : You may wish to consider a Living Will, also known as "Health Care Instructions". In a Living Will, you speak specifically to what life support systems you do or do not want utilized in the event of permanent unconsciousness, or unconsciousness coupled with a terminal condition. Reasonable minds differ regarding Living Wills. Some persons have anxiety that a Living Will, or in any event a Living Will which is known to the hospital or facility staff, may tend to influence care providers to prematurely discontinue life support systems. Some persons are principally concerned not to be kept alive by life support systems if there is at best only a slight likelihood of substantial recovery. Some persons are principally concerned to spare loved ones the burden of such momentous "life or death" decisions, by plainly expressing wishes in writing. In the absence of a writing, the Health Care Representative, or the Conservator of the Person, whichever possesses authority regarding medical decisions, will likely be required to attempt to recall past remarks and comments of the ailing person regarding his or her wishes in case of such a dire medical situation, and to communicate those recollections to the physician. There may be some uncertainty regarding what words were said, or what was meant by them, and there may be disagreement within the family regarding what was said or what was meant. One course of action which may address various concerns is to prepare a Living Will, but to direct that the Health Care Representative decline to reveal the existence of the Living Will unless and until the Representative is persuaded that the dire medical conditions to which it is intended to apply are present.

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This memorandum is intended as general orientation. Consultation with an attorney who has experience with these documents and this subject is recommended. All attorneys whose practice extends to estate planning will likely possess such knowledge.

John H Grasso
Vice President and Director, RHAM Education Foundation, Inc.

Boscarino, Grasso & Twachtman, LLP
628 Hebron Ave
Glastonbury, Connecticut

(860) 659-5657

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