ILLINOIS - ADVANCE DIRECTIVES (LIVING WILLS)

March 19, 2008

Illinois state laws and regulations that affect your medical practice

Federal law requires all patients admitted to a health-care facility be informed of their right to make an advanced directive. Advance directives are intended to direct physicians to a patient’s preferences when making treatment decisions. Illinois law provides for three types of advance directives related to health care: (1) health care power of attorney, (2) living wills and (3) mental health treatment preferences declaration.

For patients who do not have an advance directive, the Illinois Health Care Surrogate Act provides a framework for decision-making when a patient lacks the decisional capacity to make his or her own medical decisions.

I. The Living Will

The Living Will allows patients to designate whether death delaying procedures should be used in instances of a terminal condition. In Illinois, the Living Will is a very specific document which only applies if the patient has a terminal condition. The statute defines a “terminal condition” as “an incurable and irreversible condition in such that death is imminent and the application of death delaying procedures serve only to prolong the dying process.”

755 ILCS 35/2(h)

If a patient has a properly signed Living Will and the physician determines that he or she has a terminal condition, then the physician has a duty to comply with the patient’s wishes. However, if the patient has a Living Will and a Power of Attorney for Health Care, the agent appointed under the power of attorney will make the decisions on whether life sustaining treatment should be initiated or discontinued.

755 ILCS 45/4-11

II. Health Care Power of Attorney

A Health Care Power of Attorney is a document which allows patients to designate an agent to make decisions about his or her health care. The Durable Power of Attorney for Health Care includes the right to make medical decisions, to withdraw life support, and to authorize the donation of vital organs.

Health Care Power of Attorneys are typically durable, meaning the agent can act throughout the agent’s lifetime, regardless of the patient’s incapacity. There are statutory forms which can be used to create a Health Care Power of Attorney. While these forms are more recognizable, these forms are merely “samples” and any similar form should be honored.

To be proper, a Health Care Power of Attorney must be signed by the patient and one witness. Neither the patient’s attending physician nor any other health care provider rendering care to the patient may act as an agent.

755 ILCS 45/4-5

Further, a Health Care Power of Attorney may be revoked in three primary ways: destruction, written revocation, or by any oral or any other expression of the intent to revoke made in the presence of a witness who signs and dates a writing confirming the expression. Such revocation can occur at anytime, without reference to the patient’s mental or physical condition.

755 ILCS 45/4-6(a)

When caring for patients with an applicable Health Care Power of Attorney, it is important to understand the standard of care owed by an agent. The Illinois form allows patients to designate any limitations to be imposed upon the powers of the agent. Also, a patient can select one of three choices regarding the standard by which the agent must make end-of-life decisions on his or her behalf. When one of these choices is selected, the agent must follow this standard; however, if no choices are selected, the agent has full discretion to act in what he or she deems to be the patient’s best interest.

III. Mental Health Treatment Preferences Declaration

The Mental Health Treatment Preferences Declaration (“Declaration”) is a statutory advanced directive designed for individuals with reoccurring mental illness. It allows a patient to make decisions regarding their receipt of psychotropic medicine, electroconvulsive treatment (ECT), and admittance to a mental health facility for up to 17 days and to appoint someone to make these decisions for them.

For a Declaration to have force, the patient must be incapable of his or her own decision making, which is determined by either 2 physicians or the court. For patients with mental illness, a Declaration allows patients to get the time-sensitive treatment they need without needing to seek a court order.

IV. Health Care Surrogate Act

For patients who have not prepared an advanced directive, the Illinois Health Care Surrogate Act provides for a surrogate to act on behalf of the patient and make medical and life sustaining treatment decisions without court involvement. A surrogate must make treatment decisions in accordance with the patient’s wishes. If the patient’s wishes are unknown, then the surrogate will make decisions by considering the patient’s best interests.

Before the surrogate decision-making process can be used, two requirements must be satisfied. First, a physician must determine and record in the patient medical record that the patient lacks decision-making capacity. Second, it must be clear that the patient has not drafted a Living Will, Declaration for Mental Health Treatment, or Power of Attorney for Health Care.

When these requirements are satisfied, the treating physician should identify a surrogate in the order listed below:

1. Court appointed guardian of your person
2. Patient’s spouse
3. Any of the patient’s adult children
4. Either of the patient’s parents
5. Any of the patient’s adult brothers or sisters
6. Any of the patient’s adult grandchildren
7. A patient’s close friend
8. A court appointed guardian of the patient’s property

Once a surrogate is identified, the surrogate may make any medical treatment decisions for the patient except for the decision to forgo life-sustaining treatment. A surrogate may only make decisions regarding life-sustaining treatment when two physicians agree the patient (1) lacks decision-making capacity and (2) has a qualifying condition. A qualifying condition is a terminal condition, an incurable or irreversible or condition, or a state of permanent unconsciousness.

No surrogate may make mental health treatment decisions for an incapacitated patient. Unless a Declaration for Mental Health Treatment is in place, these decisions must be made by court involvement. A surrogate may, however, petition the court to order this type of medical care.

Copyright © Kern Augustine Conroy and Schoppmann, P.C. Used with permission.

Updated 2008