Questions and Answers on Living Wills and Powers of Attorney for Health Care
Who will make decisions concerning your health care if you become incompetent or disabled – your spouse, your child, a close friend, a judge? When these decisions are made will your wishes be known and followed? These questions trouble many people.
Documents known as “advance directives” allow you to answer these questions. Illinois law recognizes two types of advance directives C the Power of Attorney for Health Care and the Living Will.
A Power of Attorney for Health Care permits you to name someone to make health care decisions for you if you are unable to do so. By designating someone you trust to act on your behalf, you are able to control decisions concerning your medical care and treatment. A Living Will allows you to state in advance what types of medical treatment you do or do not desire in case you develop a terminal illness.
This pamphlet is designed to answer frequently asked questions about Powers of Attorney for Health Care and Living Wills.
Powers of Attorney for Health Care: What is a Power of Attorney for Health Care?
A Power of Attorney for Health Care is a document you sign authorizing another person, called an agent, to make health decisions on your behalf.
Why should I have a Power of Attorney for Health Care?
A Power of Attorney for Health Care allows you to name an agent who can make any and all health care decisions for you without having to obtain court approval if you become unable to make decisions for yourself.
If you are unable to make decisions and do not have a Power of Attorney for Health Care, it may be necessary for a court to appoint a guardian for you. This means that there will first have to be a hearing to establish that you are unable to make your own health care decisions. This involves paying a physician’s fees for examinations and, in some cases, court appearances as well as fees for legal services for the guardian’s attorney, called a guardian ad litem, to represent you in the guardianship proceedings.
In 1991, Illinois adopted the “Health Care Surrogate Act”. In short, in certain situations this law allows a family member, called a “surrogate”, to make decisions for you concerning the use of life-sustaining treatment without court involvement. While this law may be useful in many cases, it should not be relied on as a substitute for having a Power of Attorney for Health Care.
What are the advantages of a Power of Attorney for Health Care over a guardianship or health care surrogate?
A Power of Attorney for Health Care has several advantages over a guardianship or use of a surrogate, including the following:
- Identity of Agent: With a Power of Attorney for Health Care you can designate your own agent. If a guardian or surrogate is named, it may not be the person you would have selected.
- Directions to Agent: A Power of Attorney for Health Care can indicate how you wish your agent to act. A guardian or surrogate may not know, or be inclined to follow, your wishes.
- Speed: Under a Power of Attorney for Health Care your agent can act immediately upon your becoming mentally incompetent. Guardianship proceedings which require court decisions are subject to substantial delays and uncertainty.
- Expense: As described above, guardianships are expensive because of the costs associated with the court process.
- Scope: A Power of Attorney for Health Care al- lows your agent to make any decisions you could make. A surrogate can only make decisions concerning life-sustaining treatments.
Who may execute a Power of Attorney for Health Care?
In Illinois, any competent person at least 18 years old may execute a Power of Attorney for Health Care. Also, parents may execute a Power of Attorney for Health Care naming an agent to direct the treatment of their child.
Who can act as an agent?
Any person at least 18 years old who has not been declared incompetent and who is able to give intelligent consideration to health care matters may act as a health care agent. However, neither your personal physician nor any other health care provider (such as a nurse) that is providing health care to you may act as your health care agent. What happens if the person I appoint dies or is unavailable or unable to serve as my agent?
The Statutory Form Power of Attorney for Health Care permits you to name successor agents who may step in and make decisions if your first choice is unable to act. However, you may not have more than one person serving as your agent at the same time. How do I execute a Power of Attorney for Health Care?
The surest way of having your wishes followed is to complete and sign a Power of Attorney for Health Care. We can prepare one tailored to your needs and assist you in executing it in accordance with Illinois law. How do I tell my agent my wishes with respect to life-sustaining treatment?
Since the withholding of life-sustaining treatment is an issue of particular importance, you should discuss your wishes with your agent personally and make sure he or she clearly understands your wishes. What are the powers of an agent under a Power of Attorney for Health Care?
In general, your agent may make any health care decision that you could make if you had decisional capacity. However, you can limit your agent’s powers or provide your agent with special instructions by clearly stating them in your Power of Attorney for Health Care.
Unless your Power of Attorney for Health Care provides otherwise, your agent may do or order that the following be done for you:
- Implement or discontinue all types of medical care, including medication, surgery, life support systems, and the providing of artificial nutrition and hydration.
- Have you admitted to or discharged from any medical facility or health care institution.
- Contract for health care services. * Obtain and disclose your medical records.
- Direct that an autopsy be made, donate all or part of your body, and dispose of the remains.
- Sign documents and do whatever is reasonably necessary to carry out the above powers.
Will my agent be held liable for my health care costs?
Your agent will not be held personally liable for the health care services and treatment that he or she contracts for on your behalf.
What duties does my agent have under a Power of Attorney for Health Care?
You and your agent are responsible for notifying health care providers of your Power of Attorney for Health Care and its amendment or revocation. In carrying out his of hers powers, your agent must act reasonably and in accordance with the terms of the Power.
May my agent delegate powers granted under a Power of Attorney for Health Care?
Your agent cannot delegate the authority to make health care decisions.
Are health care providers and third parties protected in dealing with my agent under a Power of Attorney for Health Care?
A provider or third person who acts in good faith on a direction from your agent under a Power of Attorney for Health Care is protected to the same extent as if the provider had dealt with you as a legally competent person, unless the direction is clearly contrary to the terms of the Power.
What happens if I name my spouse as may agent and we are later divorced?
If you name your spouse as your agent and you are later divorced, your spouse will not longer have authority to act under the Power of Attorney for Health Care. In such a situation, you should nonetheless attempt to retrieve and destroy all copies of the Power because third parties may rely on it unless they have actual knowledge of the separation or divorce.
Living Wills
What is a Living Will?
A Living Will (also called a Declaration) is a document that you may sign stating you do not want death delaying procedures used if you develop a terminal condition. Essentially, it is a direction that you are giving your physician saying that if you develop a terminal condition you do not want certain procedures used.
In 1983, Illinois enacted the “Illinois Living Will Act.” It specifies the requirements that apply to such forms.
Who may execute a Living Will?
In Illinois, any competent person at least 18 years old may execute a Living Will.
How do I execute a Living Will?
The Living Will must be signed by you, or another person at your direction, in the presence of 2 witnesses at least 18 years old. We recommend that you execute your Living Will in our office. In appropriate circumstances, “death delaying procedures” may include assisted ventilation, artificial kidney treatments, intravenous feeding or medication, blood transfusions, tube feeding and other procedures that serve only to delay death.
If I have a Living Will can I still receive pain medication?
A Living Will does not prevent your physician from providing you with pain medication or providing other treatment to make you comfortable.
What happens if I have a Living Will and I am pregnant and have a terminal illness?
A Living Will has no effect during pregnancy so long as the attending physician believes the fetus could develop to the point of live birth with the use of death delaying procedures.
Who may witness my Living Will?
A witness must be a person at least 18 years old who is neither entitled to a portion of your estate nor financially responsible for your medical care.
When does a Living Will take effect?
A Living Will does not take effect until you have a terminal condition as certified by your physician.
What is a “terminal condition”?
A “terminal condition” is an incurable and irreversible condition, such that death is imminent and the use of death delaying procedures serves only to prolong the dying process.
What is a “death delaying procedure”?
A “death delaying procedure” is any medical procedure or intervention which, in the judgment of the attending physician, would serve only to postpone the moment of death.
Questions Concerning Both Living Wills and Powers of Attorney for Health Care
How does a Power of Attorney for Health Care differ from a Living Will?
Power of Attorney for Health Care is much broader than a Living Will. A Living Will is a short form stating that you do not want life-sustaining treatment used if you develop a terminal illness. A Power of Attorney for Health Care, on the other hand, is not limited to situations where you have a terminal illness. It allows you to designate an agent to make health care decisions for you in any situation where you are unable to do so. A Power of Attorney for Health Care also permits you to leave specific directions for your agent to follow when making decisions regarding your health care treatment.
Should I have a Living Will as well as a Power of Attorney for Health Care?
If you wish not to be kept alive by life-sustaining treatment, you should consider signing a Living Will as well as a Power of Attorney for Health Care for the following reasons.
Must hospitals and physicians honor my Living Will and Power of Attorney for Health Care?
Illinois law requires hospitals, physicians, and other health care providers who are furnished with a copy of your Power of Attorney for Health Care to make it a part of your medical records. Similarly, physicians are required to make your Living Will a part of your medical record.
In general, providers must comply with health care decisions of an agent under a Power of Attorney for Health Care or the directions stated in a Living Will unless they are morally opposed to following the directions. If the provider is unwilling to comply, the provider must inform you or your agent who is then responsible for arranging your transfer to another provider. To prevent this from occurring, you may want to consult with your physician or hospital to determine if they will be able to comply with your wishes. Note that hospitals and health care providers in other states may or may not honor your Living Will or Power of Attorney for Health Care depending upon the law of that particular state.
For how long is my Living Will and Power of Attorney for Health Care effective?
Technically, you Living Will and Power of Attorney for Health Care remain valid until they are revoked. However, it is recommended that you sign a new form every two to three years, since health care providers are more likely to honor a recently signed Living Will or Power of Attorney for Health Care.
What should I do with my signed Living Will and Power of Attorney for Health Care forms?
We recommend that the original documents be kept in a safe place. We provide our clients with photocopies and digital copies, both of which are routinely accepted and relied upon by medical entities.
In case of an emergency, how will a hospital know that I have a Living Will or who my health care agent is?
To help a hospital in contacting your health care agent or locating your Living Will in the event of an emergency, you should complete the Health Care Agent/Living Will Wallet Identification Card contained on the last page of this pamphlet and carry it with you in your wallet or purse. We will fax a copy of your Living Will and/or Power of Attorney to the hospital or physician’s office if you will call accordingly.
Can I revoke or change my Living Will or Power of Attorney for Health Care?
Your Living Will or Power of Attorney for Health Care can be revoked at any time, in any of the following ways:
- By tearing it up or otherwise destroying it in a manner indicating your intention to revoke it;
- By revoking it in writing and having the written revocation signed and dated by you or a person acting at your direction; or
- By expressing (orally or otherwise) your intent to revoke it in the presence of a witness at least 18 years of age who signs and dates a writing confirming that such expression of intent was made.
You or your agent must then tell your physician and other health care providers of the revocation.
Your Power of Attorney for Health Care can be changed at any time by a written amendment signed and dated by you or a person acting at your direction.
To amend your Living Will, you should revoke the current form and sign a new one.
Also, a court may intervene to revoke or amend your Living Will or Power of Attorney for Health Care if it believes clarification is needed or if your agent is not acting in your best interests.