© 2017 by Joan E. Emery
Your friend Mark tells you that he recently completed his estate plan with his attorney. He says that, as part of that plan, he signed a health care power of attorney and a living will. He tells you that you should have a health care advance directive. You think, What is that and why should I have one? This blog post will discuss generally Illinois health care advance directives.
A health care advance directive is often defined as a document which contains a person’s health care wishes, so that those wishes are known and implemented if the person becomes unwilling or unable to make those decisions in the future. In Illinois, health care advance directives generally refer to four different documents, including a power of attorney for health care, a living will, a declaration for mental health treatment, and a Do-Not-Resuscitate/Practitioner Orders for Life-Sustaining Treatment form.
All Illinois health care directives generally require that the person creating the health care plan must have the mental capacity to execute the document and the document must be in writing. Specific signing formalities, the number of witnesses who must sign, and when the document takes effect, vary depending on the document being signed.
An Illinois power of attorney for health care (“POAHC”) includes the following: 1) a description of the health care decisions which can be made by the agent (sometimes referred to as the “attorney-in-fact”) acting on behalf of the person who signs the POAHC (the “principal”); 2) a date or event when the agent will begin acting on behalf of the principal; 3) the name a health care agent (or co-agents, if the principal prefers and the statutory short form power of attorney for health care is not used); and 4) possibly the name of one or more successor health care agents. A power of attorney for health care is the document with the broadest scope. It can address many aspects of health care decision-making, including all powers the principal has to be informed about and to consent to, refuse, or withdraw any type of health care and may extend beyond the principal’s death to include anatomical gifts, autopsy, disposition of remains, or access to medical records after death. Beyond the scope of this discussion is the ability of a parent to delegate the parent’s ability to control or consent to health care for a minor child.
An Illinois living will provides that if the person who signs the living will (the “declarant”) develops a terminable condition and death is imminent, then the declarant does not wish to have medical treatment provided which would prolong the dying process. The declarant also directs in the living will that all medical procedures which provide comfort care should be provided to the declarant. A living will has no effect so long as an agent is acting under a health care power of attorney and that agent is authorized to deal with the subject matter of a living will.
An Illinois declaration for mental health treatment deals with three types of mental health treatment – 1) electroconvulsive treatment, 2) treatment of mental illness with psychotropic medication, and 3) admission to and retention in a health care facility for a period up to 17 days. The person who executes the declaration (the “principal”) can specify whether he or she consents or does not consent to each of these three types of mental health treatment and can specify conditions and limitations for each of these treatments. The principal can also select the physician who will determine if the principal lacks the ability to give or withhold informed consent and can name an agent (referred to as the “attorney-in-fact”) and a successor attorney-in-fact to make decisions regarding the principal’s mental health treatment in accordance with the declaration for mental health treatment.
A Do-Not-Resuscitate (DNR)/Practitioner Orders for Life-Sustaining Treatment (POLST) form is made available by the Illinois Department of Public Health (“IDPH”). The IDPH DNR/POLST form allows a patient to define the parameters of the following three types of life-sustaining treatment: 1) cardiopulmonary resuscitation (“CPR”); 2) medical interventions (including intubation, mechanical ventilation, cardioinversion, IV fluids, and IV medications such as antibiotics and vasopressors); and 3) medically administered nutrition (including long-term use of feeding tubes). There are two CPR choices, namely attempt to resuscitate or do not attempt to resuscitate. The medical interventions are full treatment, selective treatment with the primary goal of treating medical conditions with some, but not all, medical measures, and comfort-focused treatment only. The medically administered nutrition options are long-term medically administered nutrition (including feeding tubes), a trial period of medically administered nutrition (including feeding tubes), or no medically administered means of nutrition.
One important goal of health care planning is to have all health care advance directives fit together so that a clear and cohesive health care plan exists. This health care plan is usually designed to be implemented if the person who signs the directive or directives cannot make health care decisions. I recommend that the appropriate health care directives be drafted by an attorney. The attorney should work with his or her client to create a health care plan which integrates all appropriate health care advance directives.
You tell your friend Mark that you now have a general understanding of Illinois health care advance directives. But now you wonder, What may happen if I can’t make health care decisions and I don’t’ have any health care advance directives? In my next blog posts, I will discuss what may happen if a person is incapable of making health care decisions and there are no health care advance directives in place.
I am an attorney practicing in the Chicago area.