Two people, same situation, different results. Unfortuntately, we’ve see it all too often in hospitals: Person A is admitted, unconscious and unable to make decisions regarding his medical care. He didn’t create a health care power of attorney (health care POA) and now family is bickering over whether Person A would want certain treatment or not.

Then we have Person B. She’s admitted to the hospital also unconscious and unable to make medical decisions, but because she created a health care POA, her physician knows who to contact for making medical decisions and that person has already been informed by Person B about what kind of medical care Person B does, and does not, want should she be in this situation.

For many it is difficult to start a discussion on what Person A and B face which, in the legal world, we call advance care planning. At the same time, we all value the right to make decisions for ourselves, especially decisions involving our health. The already stressful situation for Person A is made worse when family members try to figure out what kind of medical decision their loved one would make. Frequently we find such uncertainty and speculation pulling family members and friends apart, rather than pulling them together to focus on their loved one.

The good news is that Illinois gives us legal tools that, when set up properly, ensure your wishes are honored when needed, making such unexpected situations easier to navigate.

What Is An Advance Directive?

An advance directive is a written statement about how you want decisions made when you can no longer make decisions. You may choose to have any number of advance directives. However, this post will focus on two of these medical advance directives: (1) Power of Attorney for Health Care[1] and (2) Living Will.

Health Care Power of Attorney

What Is A Health Care POA?

The health care power of attorney lets you choose someone to make health care decisions for you if you cannot. The person you’re giving this power to is called your agent. You may give your agent specific directions about the health care you do or do not want.

How Much Power Will My Agent Have In Making My Personal Care Decisions?

The power given to your agent can be as great or as little as you want. For instance, your health care POA can give the agent permission to make all decisions relating to your health care. Alternatively, the health care POA can be written to give the agent the power to act only in specific situations. This gives you wide latitude to cater your health care POA to meet your own needs.

One example we share with our clients has to do with communication. Let’s say there’s a situation in which you’re conscious but unable to speak. In your health care POA you can require that your agent communicate in any manner with you about any specific proposed health care, and that you would communicate by blinking your eyes. This way, you remain in control of your health care decisions even though you’re unable to speak.

What Is Required To Create A Health Care POA?

To be legally valid your signature is required on the health care POA. Your signing must be witnessed by one adult, 18 years of age or older. The witness cannot be your attending physician or your agent or successor agent (a backup person in case the agent is unavailable).

How Long Will A Health Care POA Last?

Unless otherwise stated, a health care power of attorney will last until your death. If you want it to last for a different amount of time you can specify the amount of time in the power of attorney form.

Can I Change My Health Care POA?

Yes, you can always change or end the power of attorney. To be valid, changes must be made in writing and signed and dated by you.

Living Will

What Is A Living Will?

A living will, unlike a health care power of attorney, only applies if you have a terminal condition such that your death is imminent. This advance directive tells your health care professional whether you want death-delaying procedures used if you have a terminal condition and are unable to state your medical care wishes. Additionally your living will is only used if you are unable to give informed consent to your doctor regarding what medical care you want, and you do not have an agent who is available to make a decision delaying your death.

You would use this tool to explain resuscitation options, guidelines of medications to give, and your wishes regarding life support. For example if you are in a coma, and you do not recover quickly, you can direct in your living will to keep you on a ventilator and feeding tube indefinitely, or to remove them and allow your body to take its natural course.

How Can I Create A Valid Living Will?

You can make a living will for yourself as long as you are 18 years old or older. For it to be valid, you must sign the living will and have your signature witnessed and signed by two people who are also 18 years old or older. These witnesses cannot include someone who is responsible for your medical care or who will inherit from you when you die.

Can I Cancel My Living Will?

Yes, you can cancel your living will at any time, either verbally or cancelling it in writing. It is highly important if you decide to cancel your living will to immediately inform your doctor, because the living will only stops working when your doctor gets notice.

Final Note

State of Illinois has statutory short forms for both the health care power of attorney and living will[2], but it is best practice to have an attorney prepare these important legal documents to ensure they are legally valid. After all, the worst time to discover these forms are not valid is when you are incapacitated. No matter how many times you tell your doctor or family member your wishes, without your wishes being in writing, they will not be upheld.

Also, if you do decide to make an advance directive, inform your doctor so it becomes a part of your electronic medical record. You should also give copies of your advance directives to everyone who might be involved with your health care, such as your close relatives and friends. This way, when the time comes to make important decisions about your health, those decisions are already made, there is no confusion, and your family can focus on you.