Health Care Directives and End of Life Decisions

Chicago Estate Planning | Health Care DirectivesOur Chicago estate planning attorneys cannot overemphasize the importance of addressing health care directives for estate planning purposes.  The right of all competent individuals to refuse medical treatment, including life support, through health care directives is founded upon common law protection against medical battery and has been recognized specifically through various court decision across the nation.

Family Consent

The making of end of life decisions where there is no living will or adequate health care directive, such as a healthcare power of attorney, are guided by the provisions of the Illinois Health Care Surrogate Act.  The Act states in part:

“The legislature recognizes that all persons have a fundamental right to make decisions relating to their own medical treatment, including the right to forgo life-sustaining treatment.  Lack of decisional capacity, alone, should not prevent decisions to forgo life-sustaining treatment from being made on behalf of persons who lack decisional capacity and have no known applicable living will or power of attorney for health care

This Act is intended to define the circumstances under which private decisions by patients with decisional capacity and by surrogate decision makers on behalf of patients lacking decisional capacity to make medical treatment decisions or to terminate life-sustaining treatment may be made without judicial involvement of any kind. This Act is intended to establish a process for that private decision making”

There are limits upon the ability of individuals to direct consent to treatment even where priority is clear via healthcare directives.  Some of the limitations are as follows:

  • If healthcare provider determines that one with authority is unable, unwilling or unavailable, authority shall not be given;
  • If the attending physician has actual knowledge that the patient did not wan the person with apparent authority involved in decisions concerning his or her care ; and
  • If the attending physician believes the inability of the patient to consent is temporary and any delay caused by the assessment of temporary inability to consent will not result in significant detriment to the patients health.

Do Not Resuscitate Orders – DNR’s

A Do not resuscitate order or DNR is a medical treatment order that states that cardiopulmonary resuscitation (CPR) will not be performed if a patient’s heart stops or the patient stops breathing.  Any adult with mental capacity can execute a DNR order.  Additionally, in some cases, the acting agent under a valid healthcare power of attorney can sign a DNR order on behalf of the patient.  Essentially, DNR’s are written orders which can be requested by acting physicians, or the patients surrogates, who are terminal, whose condition is noted in their medical record by time, date and condition.  The DNR order applies to emergency medical services providers when the order is presented to them.