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Power of Attorney for Health Care

Health Care Power of Attorney or a Living Will? Which is Best for You?

There are significant differences between these two legal documents and Illinois recently enacted a new law that creates a simple language form that everyone can understand.

Every person should consider the consequences of their long term health care in the event of a serious illness. Today's medical technology increases health care providers' ability to sustain life in dying patients. This includes the "Right to Die" issue which has received a great deal of attention and controversy.

Choosing who you would like to make these decisions for you when you can't communicate (a "Health Care Proxy") is an important decision.

Should you use a living will or a Health Care Power of Attorney durable power of attorney to carry out your wishes in the event you become terminally ill, need life-sustaining treatment and are unable to make the decision?

Illinois Health Care Power of Attorney (HCPOA)

A durable power of attorney for health care grants powers to an agent regarding the use of life-sustaining treatment. These powers may be much broader than those provided in a living will. With our counsel, you can tailor the powers to your wishes and provide for one of three alternatives:

  1. Do not prolong my life or provide life-sustaining treatment if you [the agent] believe the burdens of the treatment outweigh the expected benefits. Consider the relief of suffering, the expense involved and the quality as well as the possible extension of my life in making decisions concerning life-sustaining treatment; or
  2. Prolong my life and provide (or continue to provide) life-sustaining treatment unless I am in a coma that the attending physician believes to be irreversible. In accordance with reasonable medical standards at the time of reference, withhold or discontinue life-sustaining treatment; or
  3. Prolong my life to the greatest extent possible without regard to my condition, chance of recovery or cost of the procedures.

The person to whom you grant your power of attorney can also be given broad powers to make other health care decisions for you, including admission or discharge from the hospital, home or other institution. You may also name a successor agent.

The durable power of attorney for health care becomes effective upon the written certification of the treating physician that you are not able to make competent decisions regarding your health care. It can be terminated on your written revocation or by the written certification of the treating physician that you have regained the ability to make competent medical decisions.

Because of the limitations of a living will under the present law in Illinois, we are strongly recommending that our clients use a durable power of attorney for health care. If you have neither and become incompetent, the court can order the withdrawal of life-sustaining equipment. This can happen only after the court finds that: you are terminally ill; you are comatose or in a semi-vegetative condition; and the State of Illinois has no interest in intervening. The court must also find that the attending physician and two independent physicians all concur that the above three conditions have been met and there is clear and convincing evidence that you would have wanted life-sustaining equipment to be withdrawn.

Living Will (This is Not a Health Care Power of Attorney)

A living will is a formal document that is signed, dated and witnessed. Many doctors and hospitals pass these forms out, but they are not recommended since it puts too much discretion with the hospital or doctors. When properly executed, a living will enables you to dictate your desires with reference to the use of life-sustaining procedures during a terminal illness. The living will allows you to make decisions about your health care in advance, while you are still competent to do so.

Generally, a living will contains a provision that if the person has an incurable and irreversible injury, disease or illness judged by the attending physician to be a terminal condition, and death is imminent without the implementation of death-delaying procedures, then the person is to be permitted to die naturally. The living will also generally contains language requesting that the person's wishes as set forth in the living will be honored by the family and physician.

The Illinois laws on living wills states that food and water shall not be withdrawn or withheld if doing so would result in death solely from dehydration or starvation rather than the existing terminal condition. This exception can actually prevent the dying person's wishes from being carried out, regardless of the provisions of the living will.

This statutory provision was put to the test in deciding the recent Missouri case that involved Nancy Cruzan. In Cruzan's case, the Supreme Court held that the Missouri Department of Health had the right to require that clear and convincing evidence be produced to show that the patient desired to have life-sustaining medical treatment withdraw. (Cruzan's family sought to remove the artificial nutrition and hydration.) The Supreme Court assumed for the purpose of the case that the 14th Amendment of the U.S. Constitution "would grant a constitutionally protected right to refuse lifesaving hydration and nutrition." After the Supreme Court rendered its decision not to allow withdrawal of food and water, witnesses came forth and indicated that Ms. Cruzan had indicated to them that she would not want to live in the state she was in. As a result, the trial court ruled that the "clear and convincing" standard had been met and the tubes that artificially hydrated and fed Ms. Cruzan be withdrawn. The tubes were withdrawn and she died peacefully in a Missouri hospital.

In a different case, the Illinois Supreme Court held that artificial nutrition and hydration do constitute medical treatment. Given this, it may be appropriate to insert a provision in the living will authorizing the withdrawal of artificial feeding, if you so choose. This document needs to be carefully drafted to fulfill your desires in advance.

Picking Your Agent or Health Care Proxy

Who should make medical decisions for you when you cannot is an important decision. Usually it is a spouse, child or trusted friend. Whomever you decide should have this power, you must discuss your wishes with them to make sure that they understand your wishes for any end-of-life-treatment.

The Experience You Need for the Protection You Deserve

Court procedures can be very expensive, disruptive and painful for your family. No one can guarantee what the outcome will be. To avoid the uncertainty and anguish of litigation, contact us to be counseled on the use of a living will or a durable power of attorney for health care. We will help guide you through the process.

  1. Illinois Health Care Power of Attorney Form
  2. The full text of the new Illinois Power of Attorney for Health Care Law

The firm of Bellas & Wachowski Attorneys at Law can help you make the necessary estate planning decisions in a cost-effective manner. Contact Attorney Tracy Ries at tracy@bellas-wachowski.com 847.823.9030 x221 for more information.