While it is not always the most pleasant thing to think about, estate planning is one of the most important things you can do to provide for your family in the future — and that includes thinking ahead to what will happen should you ever suffer a critical illness, accident, or other medical emergency. In such situations, it may be important to have advance directives in place, to guide what treatment you receive and who will be placed in charge of your medical decision-making when you cannot do so on your own.
What Is an Advance Directive?
You have the right to make decisions about the health care you get now and in the future. An advance directive is a written statement you prepare that expresses how you want medical decisions made in the future should you not be able to make them yourself.
These are important decisions, and they should not be left up to chance. If you do not plan ahead for end-of-life-treatment or an unexpected incapacitation, you could make an already tense and complicated situation even more difficult for yourself and your loved ones.
Failing to plan when you have the chance can mean giving up control; ultimately, this could result in decisions being made that do not actually reflect what you would have wanted for yourself.
Meanwhile, failing to name who you want to make decisions and advocate for you could result in one of your family members being named as a health care surrogate, without you having any say in the matter. This could result in someone you do not want being placed in charge of your medical care decisions; cause family argument or conflicts; or put an extreme strain on one of your family members.
Generally speaking, Illinois law allows residents to make four main types of advance directives:
- Powers of attorney
- Living will
- Mental health treatment preference declaration
- Do-Not-Resuscitate (DNR)/Practitioner Orders For Life-Sustaining Treatment (POLST)
Let’s explore each type of advance directive in more depth — including what it means, what it can and cannot accomplish, and what special considerations you should address with your loved ones and your attorney:
Powers of Attorney
Broadly speaking, a power of attorney (POA) is a legal document that allows you (the principal) to appoint a person or an organization (the agent) to make decisions and manage affairs on your behalf, in the event that you are no longer able to do so for yourself.
There are several different types of power of attorney used in Illinois, including for property and healthcare.
With a power of attorney for property and finances, you appoint an agent to make property and financial decisions on your behalf. A power of attorney for healthcare empowers someone to make crucial medical decisions in the event that you become incapacited.
Your chosen agent is required to follow any specific instructions you give regarding care you want or financial transactions you want to have carried out; as a result, the scope of authority granted to an agent can be fairly general, or quite limited.
When creating a power of attorney, one of the most important considerations is whether the POA is durable. A durable power of attorney goes into effect immediately and will remain in effect in the event that you become incapacitated; you can also set up your POA so that it goes into effect when you lose the capacity to make certain decisions.
When it comes to planning for critical illness or incapacity, having a durable power of attorney for healthcare can help ensure that you’re able to get the medical treatment you need in an emergency situation. A healthcare POA can eliminate much of the guesswork from the treatment process, making it clear to your loved ones and care providers who has been given the ability to make medical decisions on your behalf.
A living will is a short legal document which allows you to provide a medical directive and dictate your end-of-life wishes.
The Illinois Living Will Act states that individuals in this state “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,” and that the rights of patients should be respected “even after they are no longer able to participate actively in decisions about themselves.”
In short, you may utilize a living will to determine whether you want death-delaying procedures to be used by healthcare professionals, should you be unable to state your own wishes — this includes describing the specific types of death-delaying procedures you do or do not want.
As the IDPH notes, a living will only applies for individuals with “incurable and irreversible conditions” such that death is imminent and the application of any death delaying procedures serve only to prolong the dying process.” There are certain limitations; for instance, food and water cannot be withdrawn if that would be the only cause of death.
The living will is the” belt and suspenders” to your healthcare POA. Your healthcare POA supersedes the living will, but is available in the event your agent is unavailable or is seeking assistance from your healthcare providers in making a decision regarding your treatment.
Mental Health Treatment Preference Declaration
The Illinois Mental Health Treatment Preference Declaration Act makes clear that any adult “of sound mind” may “make a declaration of preferences or instructions regarding mental health treatment,” including “consent to or refusal of mental health treatment.”
This includes allowing you to state whether or not you want to receive specific types of treatment in the event of mental illness — such as electroconvulsive treatments (ECT), psychotropic medicine, or admission to a mental health facility.
You can use a mental health treatment preference declaration to both set down your wishes in writing, and choose a representative to make mental health decisions for you in the event that you are incapacitated. As the IDPH notes, your chosen attorney-in-fact “must make decisions consistent with any desires you express in your declaration unless a court orders differently or an emergency threatens your life or health.”
Broadly speaking, a completed mental health treatment preference declaration expires three years from the date on which you signed it; it must be witnessed by two individuals.
Do-Not-Resuscitate Order/Practitioner Orders for Life-Sustaining Treatment
As the Illinois Department on Aging (IDOA) notes, all persons in this state have a fundamental right under the Health Care Surrogate Act to “make decisions relating to their own medical treatment, including the right to forgo life-sustaining treatment.”
The Health Care Surrogate Act makes clear that “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.”
Two tools may be used to empower individuals to make such decisions about life-sustaining treatment in the absence of a living will or power of attorney — a Do-Not-Resuscitate Order (DNR) and a Practitioner Orders for Life-Sustaining Treatment (POLST Order).
The IDPH has developed a Uniform DNR/POLST order, which can be used to say whether or not cardiopulmonary resuscitation (CPR) can be used if your heart and/or breathing stops; as well as documenting your other desires for life-sustaining treatment.
We’re Here for You, Chicago
Preparing for the unknown can be difficult, especially if you are doing it alone. Our team of experienced and compassionate advocates is here to help. An attorney can help you understand and address the many moving parts that go into incapacity planning and estate planning, including powers of attorney and other advance directives, as well important estate planning tools such as wills, trusts, and guardianships.
Founded in 2009 and offering more than 20 years of combined experience, the attorneys and staff at The Law Offices of J. Jeltes work together to provide skilled, efficient, and affordable legal representation to individuals and families going through major life transitions in the Chicagoland area.
We know that every situation is unique, and our skilled team will work with you to efficiently and effectively meet your goals, while bringing true compassion and meaningful experience to the table.
Have any more questions about advance directives? Curious about what it takes to get the estate planning process started? Don’t hesitate to get in touch to begin the conversation.