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Illinois law allows you to appoint someone to make your medical treatment decisions for you if you lose the ability to make your own decisions or to express them yourself. You can do this by using a "Power of Attorney for Health Care" where you designate the person (your “agent”) to make such decisions on your behalf. You can allow your health care agent to make all of your health care decisions while you cannot, or can limit their authority to only certain medical treatments. You may also give your agent instructions that he or she must follow. Your agent can then communicate your wishes to your health care professionals, who must follow your agent's decisions as if you were expressing them directly yourself.
It is important to note that you do NOT lose your ability to make your own health care and medical treatment decisions as long as you want to do so and are able to express them. Your agent’s ability to stand in your shoes only occurs when you are not able to express your own wishes.
While you can only name one agent at a time to make medical decisions for you, you can name “successor agents” who would serve, one at a time, as your agent in the order listed in the event your primary agent is unable or unwilling to serve.
In Illinois, if you do not have a validly signed Power of Attorney for Health Care and you become unable to express your own preferences about your medical care, there is a statute which lists other people who, in the order listed, have the authority to make your decisions for you. Some people do not like that list and prefer to make their own list in a Power of Attorney for Health Care, and to be more specific about what type of medical treatment and end of life decisions their agent can and cannot authorize for them.
In Illinois, any resident who is over the age of majority and who is legally competent can establish an Illinois Statutory Power of Attorney for Health Care.
In general, an agent (sometimes referred to as an “attorney-in-fact,” which is very different from an “attorney-at-law”) may be anyone who is legally competent and over the age of majority, even if they are not a resident of Illinois. Most people select a close family member such as a spouse, sibling or adult child. However, any person—such as a friend or a professional—whom you trust to express your opinions about your health care when you cannot do so would be ideal. Because of the increasing number of older adults who have no family members whom they can name as agent in a Power of Attorney for Health Care, there are a growing number of professionals—both individuals and companies—who can be retained to serve as your health care agent. Our office has worked with many of them to the benefit of our clients.
In Illinois, you can only have one Health Care Agent serve at a time. However, you can name as many other agents to serve, one at a time in the order listed, if your primary choice for your Health Care agent is unable or unwilling to act.
Illinois law states that whenever an agent is exercising the power which you have delegated to the agent, “the agent shall act in good faith for the benefit of the [person signing the Power of Attorney for Health Care] using due care, competence, and diligence in accordance with the terms of the agency and shall be liable for negligent exercise.” In other words, your agent owes you a duty to carry out your wishes carefully and faithfully, and to place your best interests above those of the agent or any other person.
A Living Will is your “right to die” document and informs others of your preferred medical treatment should you have an incurable or irreversible medical condition and your physician has determined that your death is imminent but for the administration of death-delaying procedures (such as continuing life support). In a Living Will, you can direct that medical procedures which would only serve to prolong the dying process be withdrawn and that you be permitted to die naturally, with only comfort care being administered. In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the process of dying.
Some medical providers have refused to release information, even to spouses and adult children authorized by the Health Care Power of Attorney on the grounds that the 1996 Health Insurance Portability and Accountability Act, or “HIPAA,” prohibits such releases. Therefore, as part of your incapacity planning, you should sign a HIPAA authorization form that allows the release of your medical information to the agents, successor trustees, family members, or any other individuals whom you wish to designate as persons that are authorized to obtain your medical information or whom you just want to stay informed of your medical condition.
We often recommend that young adults who have just turned 18 execute a HIPAA Authorization. Many people do not realize that just because their child still lives with them, or because they support their child while the child is away at college, the parents are not legally entitled to obtain their child’s medical information once the child has reached the age of majority. Many of our clients send their recent high-school graduates to our office to consult with us about signing a HIPAA Authorization.
No, Illinois law does not require residents to create or execute any of the documents discussed herein. However, if you do choose to execute one or more of these documents, you can amend them or revoke them at any time. You can also place an expiration date on any of these documents if you anticipate that your incapacity may last only a short time.
Schening & Dopke Law, LLC is located in South Elgin, IL and serves clients throughout Kane, DuPage, DeKalb and Cook Counties and the surrounding areas.
