Health Care Directives and End of Life Decisions

Our 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.

Living Wills

Possibly the best known mechanism for a person to exercise his or her right to refuse medical treatment is through a living will or advance directive.  The Illinois legislature approved the Illinois Living Will Act which states in part:

“The legislature finds that persons have the fundamental right to control the decisions relating to the rendering of their own medical care, including the decision to have death delaying procedures withheld or withdrawn in instances of a terminal condition.  In order that the rights of patients may be respected even after they are no longer able to participate actively in decisions about themselves, the legislature hereby declares that the laws of this State shall recognize the right of a person to make a written declaration instructing his or her physician to withhold or withdraw death delaying procedures in the event of a terminal condition.”

A person who would declare an intent to refuse life sustaining treatment must:

  • Be at least eighteen years old;
  • Make his or her living will in a form substantially similar to that offered in the Act; and
  • The living will must be executed, witnessed and authenticated or be in compliance with the law of Illinois.

A person may revoke his or her living will.  The revocation may occur through obliteration, written revocation upon communication to the attending physician, by authority of an agent, by oral expression or by execution of a subsequent living will.  Additional considerations may also include the Act’s allowance for a declaration specific to the provision of hydration and nutrition.  Whether a person considers these provisions to be life sustaining or comfort care should be discussed.

Healthcare Powers of Attorney

Statutory provisions for a healthcare powers of attorney are found in the Illinois Power of Attorney Act.  A healthcare power of attorney is one of many health care directives a person should incorporate in his or her estate planning.  In short, the agent acting as a persons healthcare power of attorney must act according to the wishes of the person authorizing the healthcare power of attorney.  In the event the agent is not able to obtain guidance from the persons healthcare power of attorney, the agent is to act according to the agent’s best understanding of the persons wishes.  Generally the agent elected for the healthcare power of attorney will be a spouse, children, or a trusted family member with medical experience.

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.