Just as we create estate plans for our eventual demise, we also need to plan ahead for the possibility that we could become incapacitated (due to illness or injury)and unable to make our own medical decisions.
Durable Power of Attorney for Health Care Power ("POA-HC")
Anyone may suddenly become seriously ill and lose the ability to communicate their preferences. This is why it is important for competent adults of all ages to consider giving someone they trust the legal authority to carry out and follow their wishes concerning medical treatment, if it is ever becomes necessary. In Illinois, the statutory POA-HC is durable (which means it survives incompetency / incapacity) and it allows you to appoint an initial person to act as your agent. To increase the likelihood that you do have a health care agent in place to make medical decisions for you (if one is ever needed), executing a POA-HC that names a person you trust to be your first-named agent and, if possible, one or more trusted successor agents is prudent, wise, and recommended.
Appointing an Agent
Again, a validly appointed agent will have the authority to make medical decisions for you (the principal), if you are unable to make them yourself. For most people, appointing a family member or friend that you trust to follow your instructions is preferred. Before executing a POA-HC, it is crucial that you have a serious discussion with the person(s) you want to name as your agent and your successor agents. You want to be certain that they will carry out your instructions and your specific wishes concerning health care decisions for you.
These conversations can be difficult. That said, talking through some of the scarier health care situations you could potentially face someday is important. Consider discussing with your agent and successor agents your feelings on such sensitive topics as life-sustaining treatment, hospice care, palliative care, and perhaps spiritual support. You want your agent and successor agents to know what you would be willing or unwilling to do, if it means jeopardizing your quality of life.
Living Wills
A living will is a document that provides instructions to your health care provider(s) regarding treatment, if you become terminally ill or are in a persistent vegetative state and unable to communicate. A living will takes effect only upon a person's loss of capacity and, in Illinois, it is not a substitute for a POA-HC. It simply dictates the withdrawal of life support in instances of terminal illness, coma, or a vegetative state. If you have both a POA-HC and a living will in Illinois, per the applicable law, the POA-HC is the controlling document.
Illinois POLST: A New Approach
Advance directives (POA-HCs and/or "living wills") provide general guidance on what type of care a patient would like. Yet, at times, not all medical professionals follow them consistently. In part, this is because they do not give them explicit instructions regarding critical decisions about a patient's care.
An alternative has emerged in recent years: the Physician Orders for Life-Sustaining Treatment ("POLST"). The Illinois POLST can be used to maximize a seriously ill patient's control of their medical care and to help them establish a care plan that aligns with their own treatment wishes given what is medically realistic. The POLST form is, then, completed by the seriously ill patient and an authorized member of their health care team. Once completed, the patient will have written documentation of their wishes in a uniform, secure, and retrievable medical order that can be used to direct medical care in a variety of settings out in their community. To learn more about the Illinois POLST, visit the following website: POLST Illinois
Conclusion & Working With an Estate / Elder Law Planning Attorney
The above noted documents, once completed, are not set in stone. Each of these documents is revocable, should you change your mind.
To learn more about advance directives for health care, including how to create and execute these documents, either consult with your estate planning / elder law attorney or reach out to our office. An attorney that is knowledgeable about each of these documents will be able to help you shape a plan for your future health care and well-being, as well as for the protection of your loved ones in the years to come.