It is easy to imagine a situation where you need medical care, but you are unable to make the necessary decisions because you’re unconscious or you can’t communicate with your doctors. How do these decisions get made and who makes them?

Living Wills.

Almost everyone has heard of “Living Wills” because of the legal battles surrounding the care of Terri Schaivo. Ms. Schaivo had been in a car accident and was kept alive by a respirator and intravenous feeding. Her husband believed that she had minimal brain function, and that she would not have wanted to live that way. Ms. Shaivo’s parents objected to withdrawing her life support. The battle between her husband and her parents lasted for 15 years. It was said that if Ms. Schaivo had signed a Living Will, then the prolonged legal fight could have been ended quickly.

The terminology regarding advance health care directives varies from state to state. In Florida, where Ms. Schaivo was in the hospital, a Living Will was very similar to our Illinois Power of Attorney for Health Care. Although we have Living Wills in Illinois, it is a very limited document.

In Illinois, a Living Will is a “directive” to your physician, and allows the withdrawal of “death delaying procedures” if you meet the following requirements:

1. You must have an incurable or irreversible injury or illness
2. You must be in a terminal condition; and
3. Your death must be imminent.

You can see from these requirements that, if Ms. Schaivo was in Illinois, a Living Will wouldn’t have helped much. First, it is only a “directive” to the physician and is not legally binding. The doctor and hospital are free to ignore the Living Will, and they cannot be forced to comply with its terms. Although Ms. Schaivo’s condition was irreversible, she was not “terminal” and her death was not imminent. Lastly, under Illinois law, a Living Will does not apply to the nutrition or hydration, which were sustaining her.

In response to the limitations inherent in a Living Will, Illinois created a much more useful Power of Attorney for Health Care.

Power of Attorney for Health Care.

The Power of Attorney for Health Care is the easiest way to control your medical care, if you cannot communicate with your doctors. It is a statutory form which allows you to appoint an agent to make medical decisions for you.

The powers are initially very broad, although you can limit your agent’s ability to make certain decisions. For example, if certain types of procedures violate your religious beliefs, you can limit your agent’s ability to approve those procedures.

The Power of Attorney also addresses the issue of life-sustaining treatments and end-of-life issues. Based on the level of authority you have chosen, your agent may withhold or remove life-sustaining treatments when appropriate, including nutrition and hydration.

Unlike a Living Will, the Power of Attorney for Health Care is legally enforceable by your agent.