Healthcare Directives
As debate over National Healthcare Reform heats up, I am seeing lots of rhetoric about “death panels”, about who decides when and how a person is allowed to die and how to address these critical issues. Without passing judgment on the current proposed healthcare reform, we all can, and should address, in our own personal lives the very important question of life sustaining medical care decisions at the end of our lives, or, in the event of our mental incapacity.
In Illinois, there are different tools available to us to address these decisions. First, a person can execute a “Living Will”. A Living Will does not dispose of any property but merely addresses the issue of whether a person’s physicians should administer or withhold life sustaining treatments in the event of a terminal condition. The Illinois Living Will Act (755 ILCS 35/1 et. seq.) addresses the purpose and requirements of a Living Will. Like a Last Will and Testament that disposes of property upon someone’s death, there are rigid requirements as to how a Living Will is to be executed and therefore, an Attorney should be consulted before attempting to prepare and execute such a document.
A second method to address the issue of terminal care decisions is through the use of a Power of Attorney for Healthcare (755 ILCS 45/4-1 et. seq.). Under this act, a person may execute a document giving a qualified agent the right to make certain decisions on behalf of the person signing the document. All decisions on healthcare, including the right to make life sustaining decisions may be delegated to an agent. The Power can extent beyond death to the right to make anatomical gifts, consent to an autopsy, or disposition of remains. The form set forth in the Statute can be modified to expand or curtail the “form language” for specific uses.
In the absence of a Living Will or Health Care Power of Attorney, a statute does address these critical issues. This statute is, known as the Health Care Surrogate Act (755 ILCS 40/1 et. seq.). This act can be used when a person does not have a Living Will, or an operative declaration under the Mental Health Treatment Preferences Declaration Act (THIS ACT IS NOT ADDRESSED IN THIS ARTICLE AND ANYONE INTERESTED IN SPECIFIC TREATMENT DECISIONS INVOLVING MENTAL HEALTH SHOULD CONSUL AN ATTORNEY WHO PRACTICES IN THE MENTAL HEALTH AREA), or an authorized agent under the Illinois Power of Attorney Act. The Act allows for certain persons to make health care decisions on behalf of a Minor or an adult patient who lacks decisional capacity. The Act itself sets forth, in an order of preference, who can act as the surrogate. It is important to note, that for same sex couples, a “life partner” is not specifically listed. If no person named in the statute is available, a court appointed guardian may become the surrogate. Although this statute can be used, often, there may not be a qualified surrogate under the act or, there may be several qualified surrogates who cannot agree as to what decision should be made. This can and does lead to legal disputes that end up in Court and can cost much money to litigate. Thus, it really is critical to have a Living Will and/or a Health Care Power of Attorney and especially important for same sex couples.
By addressing terminal care issues before one becomes incapacitated, you can avoid issues over who can make decisions, what decisions should be made and what the outcome of any decision should be. By addressing this critical issue now and in consultation with a legal professional, family fights, possible legal expenses for guardianship can be avoided and peace of mind, knowing that your own wishes will be carried out can be obtained.
BEFORE DECIDING WHICH OPTION IN ADDRESSING TERMINAL CARE IS BEST FOR YOU, CONSULT AN ATTORNEY.
