In Illinois, we have two ways to protect yourself from having life-sustaining treatment that prolonged your life longer than you would want. You can sign a living will or a health care power of attorney.
Living Will. You may have at least a general idea of how a living will works. The heart of the living will is this sentence:
If at any time I should have an incurable and irreversible injury, disease, or illness . . . judged to be a terminal condition . . . [and] my death is imminent except for death delaying procedures, I direct that such procedures . . . be withheld or withdrawn.
Only one person can “determine that [your] death is imminent except for death delaying procedures.” That person is “your attending physician who has personally examined [you].” That leaves much of the decision up to the doctor—not somebody who knows you well.
Health Care Power of Attorney. A power of attorney is different. By signing a power of attorney, you can appoint an agent to make health care decisions for you.
An Illinois power of attorney is powerful. The agent can direct termination of treatment. The agent can also direct continuation of treatment, even if, for example, your insurance company thinks it’s too expensive. The agent can do anything you could do yourself if you were able to speak for yourself. They can even fire your doctor or have you moved to a different hospital.
Having somebody who can make health care decisions for you when you can’t do it yourself is a wonderful thing. Joe says, “Nothing I have done as a lawyer has been more helpful to my clients and friends than helping them prepare power of attorney papers. The lives of dear friends have been enriched; needless suffering has been averted.”
Such a benefit can never come without consequences. Because the power of attorney is so powerful, it’s also dangerous. Broad powers let the agent take care of you… or take advantage of you. The decisions you make in preparing a power of attorney are therefore as important as any decisions you will ever make.
Our Illinois power of attorney law lets you write your own rules. You can’t name your doctor as your health care agent, but otherwise, you can delegate any power you want, to whomever you choose, under whatever terms you specify.
Which is best? Every one is different and there might be circumstances when we’d recommend a living will. Practically always, though, we recommend the health care power.
A living will is a single purpose document. It only applies in certain circumstances. Your death must be imminent; it can’t protect you from a long period of excruciating pain or humiliating dependence. It only allows specific actions. It does not allow anybody to require that treatment be continued. It does not let you delegate decisions except death-delaying treatment. Moreover, if the circumstances apply, the actions must be taken. There is no provision for discretion or for consideration of special circumstances.
A living will is like a land mine. Until it’s triggered, nothing happens at all. Once it’s triggered, it explodes.
The health care power is much broader and more flexible. It can allow your agent to make any health care decision for you. It can authorize ending treatment. But, if you prefer, you can also require that treatment be continued. And the health care power can cover entirely different questions. You can specify treatments you don’t want (though we don’t recommend it) . You can empower your agent to authorize experimental treatments, admit you to a convalescent home, release your medical records, or fire your doctor.
The health care power lets you delegate crucial decisions to a human being you trust, who can consider all the subtle complexities of life.
Do It Yourself?
You can prepare a statutory power of attorney without a lawyer. You can probably find the pre-written, statutory form online. It’s better to write one for yourself than to go without, but we think it’s worth getting help. We can help you in four ways: explaining the law and the statutory form, phrasing your instructions so they have the legal effect you intend, guiding you through signing technicalities, and, ideally, providing sensitive counsel to help you make wise choices.
Naturally, we can explain the law and the forms, helping you understand the choices you can make and the effect of the papers you sign. You probably won’t read the statute. Even if you do, you may miss something which is important to you. Your lawyer may miss something too, or may not recognize that it’s important to you, but you improve your odds!
Drafting is another typical part of the lawyer’s work. Lawyers are trained to use language to achieve specific goals. When a doctor, bank officer, or court reads your form, you want them to understand your intentions correctly. So a lawyer is important if you want to make any changes from the standard form.
We can also try to make sure that the forms are properly signed. The people who designed the form tried to make it fool-proof but they failed. You don’t want to have trouble with your form because you signed in the wrong blank or didn’t get the right number of witnesses.
A good lawyer can often do more. We try to be “Lawyers and Counselors;” we hope to help you make better choices. Some decisions look good at first but may not work out in practice. Our memo Planning for Disability with the Power of Attorney warns about some pitfalls and temptations we’ve run across. (You can find the memo in the Library section of this site.) Even if we had no special expertise or experience, we might still be helpful: it’s always good to get an outside perspective or a second opinion about important decisions.
We think it’s worthwhile to work with a lawyer. But even if the idea of hiring a lawyer makes you cringe, we urge you to sign a health care power of attorney you prepare yourself. Please do it.