With an ever increasing elderly population, and ongoing medical advances which provide life-sustaining treatment to incapacitated individuals, more and more patients and health care providers are concerned with end-of-life issues. Dealing with these issues before a patient loses the ability to make a decision for themselves provides not only a sense of security for the individual, family, and friends, but also for the health care provider. An advance directive is an order that allows a patient, prospectively, to make decisions concerning their health care and/or end-of life issues. Many states have similar laws. The following is a brief summary of advance directives available in Illinois and the circumstances in which each may be used.

Mental Health Treatment Preference Declaration Act

755 ILCS 43

A Mental Health Treatment Preference Declaration governs administration of electroconvulsive treatment, administration of psychotropic medication and voluntary admission to a mental health facility for a period of up to 17 days. This is the only document that allows an appointed “Attorney-in-fact” to make a decision to voluntarily admit a patient to a mental health facility. Because any issues dealing with Mental Health Care are strictly scrutinized under the law, the requirements for such a declaration are very stringent as well. The declaration must be made by competent adult, may include consent to or refusal of mental health treatment and must be made part of the patient’s mental health and/or medical record. It is only effective if it is signed by the person to be committed and two adult witnesses. Witnesses may not be (1) the attending physician/mental health service provider or their relative (2) an owner/operator of the mental health facility in which the principal is a patient or a resident (3) a relative of the principal by blood, marriage, or adoption. The designated “Attorney-in-fact” may not be: (1) the attending physician/mental health service provider or their employee if they are not related to the principal by blood, marriage, or adoption, or (2) an owner/operator or their employee of the mental health facility in which the principal is a patient or a resident unless they are related to the principal by blood, marriage, or adoption. An approved Form that complies with the statute is provided in the body of the statute and is posted on the Illinois Department of Public Health website. www.idph.state.il.us/public/books/advin.htm

Power of Attorney for Health Care

755 ILCS 45

In a Power of Attorney for Health Care, the patient offers the broadest powers to the designated Agent. The patient/principal may include limitations on the powers, the Power of Attorney may extend beyond the life of the patient/principal, and the patient/principal may revoke it at any time (even if the principal is incompetent). Powers delegated to the Agent include all powers the individual may have to be informed about and to consent to or refuse or withdraw any type of health care for the individual and all powers a parent may have to control or consent to health care for a minor child. (except as noted above for mental health treatment). The designated Agent may not be the attending physician or health care provider for the principal (although the agent may be a health care provider not administering health care to the principal). In general, the principal has also executed a Living Will, the Power of Attorney governs.

It is the responsibility of the principal or the agent to make health care providers aware of any Power of Attorney and of any amendment or revocation. The health care provider must then make the document part of the patient record, and the health care provider must then inform the appointed agent whenever the provider believes the patient lacks capacity to act on his own behalf.

An approved Statutory Form is posted on the Illinois Department of Public Health website. Non-statutory forms may be used, and must be executed by the principal, designate the agent and the agent’s powers, and comply with restrictions on who may and may not serve as Agent, but do not need to be witnessed.

Living Will

755 ILCS 35

This statute recognizes the individual’s right to make a written declaration instructing his or her physician to withhold or withdraw death-delaying procedures in the event of a terminal condition. It generally applies to only to death delaying procedures. Note, however, that nutrition and hydration shall not be withdrawn or withheld from a patient who has executed a Living Will if the withdrawal or withholding would result in death solely from dehydration or starvation rather than from the existing terminal condition. A Power of Attorney for Health Care, in contrast, does allow the designated Agent to withdraw or withhold nutrition and hydration even if death would result solely from dehydration or starvation. A terminal condition must be diagnosed and verified in writing by the attending physician who has personally examined the patient, and consists of “an incurable and irreversible condition which is such that death is imminent and the application of death delaying procedures serves only to prolong the dying process.” The written verification of a terminal condition is to be placed in the patient record and a physician is presumed to be acting in good faith. The physician is immune from civil or criminal liability that otherwise might be incurred under a Living Will unless it is alleged and proven that the physician’s action violated the standard of reasonable professional care and judgment under the circumstances.

Any competent adult may execute a Living Will, which must be signed by the declarant (or another at the declarant’s direction) and witnessed by two individuals 18 or older. If the patient is diagnosed as pregnant, the Living Will will be given no force and effect as long as in the opinion of the attending physician it is possible that the fetus could develop to the point of live birth with the continued application of death delaying procedures. Again, it is the responsibility of the patient to make the attending physician aware of the Living Will and its provisions. It is the responsibility of the attending physician to make the document part of the patient’s record and to promptly inform the patient if the physician is unwilling to comply with its provisions. If the physician is unwilling, it is the responsibility of the patient or, if incapable, certain authorized persons, to initiate transfer to another physician. An approved Statutory Form is provided in the body of the statute and is posted on the Illinois Department of Public Health website.

Health Care Surrogate Act

755 ILCS 40

This Act covers those situations in which a person who lacks decisional capacity has no known valid or applicable Power of Attorney for Health Care or Living Will The Surrogate Act is not triggered until such time as the attending physician determines to a reasonable degree of medical certainty that the patient lacks decisional capacity. It is only after a determination by the attending physician that the patient has a “qualifying condition” that the surrogate decision maker may consider whether or not to forgo life-sustaining treatment. The physician, who has personally examined the patient, must certify in writing in the patient chart that the patient has one or more of three defined “qualifying conditions”. The qualifying conditions are, generally, as follows: (1) Terminal Condition, (2) Permanent Unconsciousness, and (3) Incurable or Irreversible Condition for which there is no reasonable prospect of recovery or cure, which will cause the patient’s death even if life-sustaining treatment is initiated or continue, which imposes severe pain or an inhumane burden on the patient, and any life-sustaining treatment, in light of the patient’s medical condition, provides only minimal medical benefit. In addition, before considering whether or not to forgo life-sustaining treatment, at least one other physician must concur, in writing in the patient record after physical examination, in the determination that the patient lacks decisional capacity.

A surrogate must be an adult with decisional capacity who is available upon reasonable inquiry, is willing to make medical treatment decisions for the patient, and is identified by the physician according to the provisions in the statute. The statutory priority is as follows: (1) guardian of the person, (2) patient’s spouse, (3) any adult son or daughter of the patient, (4) either parent of the patient, (5) any adult brother or sister of the patient, (6) any adult grandchild of the patient, (7) a close friend of the patient, and (8) guardian of the estate. Please note, that if there are multiple surrogate decision makers at the same priority level, it is the responsibility of the surrogates to make reasonable efforts to reach a consensus regarding decisions. If two or more surrogates of equal priority indicate that they disagree with the decision, a majority of the available decision makers in that priority class shall control. The minority may then initiate guardianship proceedings, but in no case is any person required to seek appointment of a guardian. The surrogate’s name, address, telephone number and relationship to the patient must be entered in the patient record. Any person dealing with the surrogate may presume in the absence of actual knowledge to the contrary that the acts of the surrogate conform to this Act. However, no person will be protected who has actual knowledge that the surrogate is not entitled to act or that any particular action or inaction is contrary to the provision of this Act.

If the adult patient is deemed to have decisional capacity, health care decisions are to be made by that adult patient. There must be documentation in the medical record of the various medical requirements The Act requires that the surrogate shall make decisions that conform as closely as possible to what the patient would have done or intended under the circumstances. If the patient’s wishes are unknown, the surrogate should make decisions based on the patient’s best interests. If no surrogate decision maker or guardian is determined to be available after reasonable inquiry by the health care provide, decisions may be made by a court appointed guardian.■