Why a Health Care Power of Attorney Document is a Critical Part of Your Estate Plan

A Power of Attorney for Healthcare (“POA-Healthcare”) is a basic estate planning document that everyone should have.

With a properly signed POA-Healthcare you authorize someone to be your agent to make healthcare decisions and access your healthcare records if you become mentally incapacitated and could not make those decisions for yourself. This document also has what I refer to as a “Living Will” section – where you state your preference for life sustaining treatment if your doctor believes you are in a “permanent coma.”

The Illinois Health Care Surrogate Act

If you do not have a validly signed POA-Healthcare, Illinois law has hierarchy list of who can make healthcare and life-sustaining treatment decisions on your behalf through the “Illinois Health Care Surrogate Act” (755 ILCS 40/1 et. al.).

The decision-making hierarchy per the Illinois Health Care Surrogate Act is as follows:

  1. Your Court Appointed Guardian

  2. Your Spouse

  3. Your Son or Daughter

  4. Either of your Parents

  5. Your Adult Brother or Sister

  6. Your Adult Grandchild; and then

  7. Any “Close Friend”

What happens if there are multiple decision makers that have the same priority level in the hierarchy listed above and they cannot agree on a healthcare decision?

The Illinois Health Care Surrogate Act says that a “majority of the available persons in that category . . . shall control unless the minority . . . initiates guardianship proceedings in accordance with [Illinois] Probate Act.

In other words, the Surrogate Act requires that all your family members on a specific hierarchy level agree as to your healthcare decisions – or fight it out in Court.

A properly signed and witnessed POA-Healthcare prevents all of this potential conflict.

What Authority Does Your Agent Have if they Need to Act on Your Behalf?

By signing a POA-Healthcare you are giving your Agent the following broad powers if they need to act on your behalf:

  1. Make Healthcare decisions on your behalf (even life and death decisions and end-of-life care decisions).

  2. Admit or discharge you from any home; hospital or other medical institution - including a mental health facility.

  3. Have complete access to your medical records and can share them with others as necessary for your care.

  4. Carry out any plans that you have made for your remains and if you have not made those plans, they can make those plans on your behalf - this includes funeral planning; cremation; organ donation and autopsies.

The Living Will Section of a POA-Healthcare

In the “Living Will” section of the POA-Healthcare you can state whether you want life-sustaining treatment to continue in the event your doctor believes, in accordance with reasonable medical standards, that you are unconscious and will not wake up, recover your ability to think, communicate with your family and friends or experience your surroundings (“Permanent Coma”).

The POA-Healthcare document gives you two options to choose from that will give your Agent guidance in the event you are in a "permanent coma". I have summarized those options below:

  • Option 1 – Quality of Life Option: You believe that the quality of your life is more important than length of your life. By choosing this option, you are saying that you DO NOT want life sustaining treatment continued if you are in a permanent coma, but your Agent is authorized to allow treatment to make you comfortable and relieve you of pain.

  • Option 2 – Keep You Alive No Matter What Option: By choosing this option you are telling your Agent you DO want life sustaining treatment to be administered for an indefinite amount of time in the event you are in a permanent coma.

Make Sure Your Agent Knows Your Wishes

In addition to choosing one of these options in the POA-Healthcare document, it is important that you talk to your agent so that they know what your wishes are in various healthcare related circumstances. You can also complete additional forms and worksheets that give more detail on the level and kind of life sustaining treatment you would prefer.

Below are links to local central Illinois resources for more information on life sustaining treatment options and other advance directive documents:

OSF Healthcare Advance Care Planning

Carle Advance Care Planning

Compassion & Choices of Mclean County – Advance Planning Toolkit

NOTE - Living Will vs. DNR: Many people are confused on the difference between the Living Will section of the POA-Healthcare and a DNR/POLST form. The “Living Will” Section in the POA-Healthcare is NOT a “Do Not Resuscitate” or “DNR/POLST” order.

A DNR/POLST order is a document that has to be signed by your physician and it gives instructions to Emergency Personnel and Medical staff on whether they should try to resuscitate you in the event your heart stops beating. Generally only people that have a fatal illness or who are very elderly want or need a DNR.

Although the POA-Healthcare is a statutory form document, we have found that most people need guidance on completing the document correctly. We guide and counsel our clients on completing the POA-Healthcare document as part of our comprehensive estate planning process at Ritchie Law Office, Ltd.

This article is a service of Attorney Chad A. Ritchie and the Ritchie Law Office, Ltd. Click Here or call (309) 662-7000 to learn more about Ritchie Law Office, Ltd. and our Estate Planning process, which starts with an initial consultation called our “Ritchie Legacy Planning Session”.

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