A living will allows you to make decisions ahead of time on end-of-life issues.  But did you know that there are two types of documents in Illinois that are generally referred to as a "living will"?  Both deal with end-of-life issues, but they do so in different ways.  One of them is very limited; its successor, known as a medical power of attorney, health power of attorney or formally the Illinois Short Form Power of Attorney for Health, is much broader.

Illinois Living Will

The Illinois legislature joined the trend of the other states in 1984 when it enacted the Illinois Living Will Act.  The living will originated to deal with medical situations in which a person's body could be kept alive according to medical standards, while his brain function would have ceased or when it was considered unlikely that the individual would ever return to consciousness.  This Act prescribed a short (less than one page) Declaration that declared that if the person had "an incurable and irreversible" condition that was "terminal" and whose death was imminent", then the physician should not employ procedures to prolong the dying process.

While the form set forth by the legislature could be amended by the individual, the form as prescribed is quite simple.  Upon signature by the declarant, and upon attestation by two witnesses, the Declaration would become valid and would then have to be honored by the attending physician.

Illinois Short Form Power of Attorney for Health Care

Because the Living Will was too simple and inflexible, in 1987, the Illinois legislature enacted the Short Form Power of Attorney for Health Care, referred to as a medical power of attorney or health power of attorney as well as being known as a living will. As with any other power of attorney, so this one provides for the appointment of an agent to act on behalf of the principal if the principal is not able to speak for himself.  This Power of Attorney is limited to matters of health care (it doesn’t cover property), and it is further limited to the choices made by the principal in the Power.

Like the Living Will’s Declaration, this Power of Attorney can be amended by the principal. However, even in the form prescribed by the legislature, it provides for the principal to choose among three levels of care that he wishes to be administered to him: (a) care that, in the agent’s opinion, the benefits outweigh the burdens; (b) all care unless the principal is in an irreversible coma, in which case the doctor will stop life-sustaining treatment; and (c) all care to prolong life as long as possible.

The legislature also provided that, where an individual has both a Living Will and a Power of Attorney for Health Care, the Power of Attorney takes precedence and any agent acting under it may make decisions consistent with the Power, even though inconsistent with the Living Will.

Comparison of the Two Acts

While the Living Will had the virtue of being simple, it had the vice of being simplistic. It could provide directions as to the limited condition of when death from an incurable and irreversible condition was imminent, but apart from that condition, it could provide no direction nor even guidance. And, as with many areas of the health care field, situations are so varied and distinctions between one and another can be so subtle, that the simplicity of the Act worked against itself.

The Power of Attorney remedies this to some extent by appointing an agent to make decisions in those "gray" areas.  He has authority to make "all decisions for me concerning my personal care, medical treatment, hospitalization and health care...", but he may do so only within the parameters set forth by the principal when he chose among the three levels of care. From the physician's standpoint, the Power is an improvement, because it provides for a live body to make a decision in those gray areas and to direct the physician, whereas the Living Will would have been silent on the matter.

An important aspect of the Power that must be considered, however, is that it places on the agent the burden of making decisions about another person's life. The psychological impact of such a burden is something that must be discussed between, and considered carefully by, the principal and agent. Though we may be detached and objective when speaking hypothetically about making a life or death decision about a loved one, actually having to make a choice can have a forceful impact on the agent's mental well-being. Where a Power is agreed upon by the principal and agent, the agent would do well to consider counseling with his spiritual advisor or other qualified person before ever having to make the decision. And the principal would do well to speak to the agent at some length about what the principal would like in various hypothetical situations.

Although it might seem to be overly cautious, it would also be a wise idea to speak with one's physician. There are an infinite number of variables that can arise for any given health condition. You might want to consult your physician on what some of those variables could be, the effect they would have on you, the expense that would be incurred, etc.  You also might like to ask your physician what course of action he would take under different conditions, absent any specific direction in your Power of Attorney.

The Power of Attorney further provides that a principal may name the agent as a guardian of his person in the event that a guardianship must be declared. This provision does not call for a guardianship; only that if a guardianship is declared, that the agent will so act.

Should You Have a Living Will?

If you wind up in the situation where you can not make your own medical decisions, someone else is going to make decisions for you. If you have not executed a Living Will, then a doctor or hospital will make those decisions for you.  That is a result that you probably will not want, nor will your family.  But in order to avoid that unpleasant result, you need to deal with the issue now, while you can.

What Will I Do For You?

I know the idea of thinking about your death can be distasteful, but it should be done.  It can be confusing, too.  That is where I can help you.  We will walk through the form, exploring the issues that it does and doesn’t deal with.  We will craft it in such a way that any worries you have can be resolved. As we finish, you can feel relieved that you have adequately provided for those end-of-life decisions in a way that does not lay an undue burden on your family.