estate planningwills

A Living Will? Think Again…

By January 25, 2012No Comments
The Legalese Maze

The Law Language. Photo Credit: Gerard, St. Gallen, Switzerland

In a recent newsletter, I briefly tried to take readers through the legalese maze used to discuss documents that give a person authority to make healthcare decisions for someone else. Because these documents are typically – and should be – signed before the need to make the decision arises, they’re often called, “advanced directives,” “healthcare directives,” or “healthcare proxies.” No such terms are used to identify these documents in Illinois. Confused yet?

Here in the Land of Lincoln, the 2 main “healthcare directives” are a “Living Will,” which is based on the Illinois Living Will Act, and the Healthcare Power of Attorney (“HCPOA”), which falls under the Illinois power of Attorney Act. 755 ILCS 35 et seq., 45/4 et seq. (2011). People often confuse a Living Will with a Living Trust because we hear the term “will” and automatically assume the term has something to do with property. However, a Living Will has nothing to do with property, unless you consider your life property. Then again, our organs, tissues, blood, and so forth are defined as property under certain legal circumstances, but that’s not relevant here.

A Living Will is a document that can authorize one person to make the decision for another person to prohibit or stop death-delaying procedures when the decision involves terminal illness.  755 ILCS 35/3(d). A Living Will requires the principal (person providing the authority) to be of “sound mind” and “willfully and voluntarily” execute the document. This means they have to know what they’re signing and be doing it of their own accord. Additionally, the document only applies where the principal has an “incurable and irreversible injury, disease, or illness judged to be a terminal condition … by an attending physician.” 35/3. A Living Will is primarily a “do not resuscitate” or “don’t keep alive by artificial means” declaration and requires not only the principal’s signature but also the signature of 2 witnesses.

The other primary healthcare directive is the Illinois Healthcare Power of Attorney,which gives much broader authority than a Living Will and, ironically, only requires one witness.  The HCPOA, like a Living Will, allows a person to delegate decision making about healthcare matters to another person (an “agent”). Those decisions can be not only about basic healthcare treatments, but also can “include, without limitation, all powers … to consent to or refuse or withdraw [from] any type of healthcare.” 755 ILCS 45/4-3. The law defines healthcare as including “any care, treatment, service, or procedure” used to sustain or cease a death-delaying measure. 45/4-10. Therefore, the HCPOA provides the same powers – and more – as a Living Will.

So why have a Living Will? Good question. Often, the legislature passes a law that gives more authority and flexibility to those who will use it but doesn’t repeal the old law. This happens to be one of those cases: the Living Will as written in the law did not have a space for the name of the authorized agent or successor agent. It’s also why, if you reside in Illinois, you might want to execute an HCPOA instead of a Living Will.

Leave a Reply