A short course on advanced directives

Have you ever been at a social function or family gathering, and approached by a family member or friend with the dreaded words:"You're a lawyer aren't you?" As all doctors are presumed competent to treat all of a person's ills, a lawyer is expected to know every facet of the law. Government attorneys, however, often specialize in an area of the law that might seem esoteric to many. Moreover, it has been a long time since we graduated from law school, completed our bar review courses or engaged in the private practice of law. What is a government lawyer to do?

This is the first in what is hoped to be a series of articles written by government lawyers with expertise in those areas of the law in which family and friends often pose questions. Let's begin with advanced directives.

Advanced directives

There are four types of advanced directives used in Illinois: the Living Will; the Power of Attorney for Health Care; the Power of Attorney for Property; and the Declaration for Mental Health Treatment. Copies of these documents may be obtained from numerous Web sites including the Web site of the Illinois State Bar Association (www.isba.org) (the documents may be found on the ISBA's Web site by entering the name of the advanced directive in the search sections); the Illinois Guardianship and Advocacy Commission (http://gac.state.il.us/forms.html); those of hospitals and other health care providers, (e.g., http://www.memorialmedical.com/directives.htm); or those found by simply going online and typing the name of the document in your search engine of choice.

Until 1987, powers of attorney in Illinois expired upon the disability of the principal (the maker of the document). This, of course, made the documents ineffective as tools to direct care after the person no longer had capacity to direct care. The Illinois Power of Attorney Act (755 ILCS 45/1-1 et seq. (West 2000)) has been modified to provide that unless the agency document states an earlier termination date, the agency continues until the death of the principal. (755 ILCS 45/2-5 (West 2000)).

Living wills

The Illinois Living Will Act (755 ILCS 35/1 et seq. (West 2000)) was the General Assembly's first effort at allowing its citizens to execute advanced directives. While many Illinois residents have executed a living will and those forms remain valid, the General Assembly has greatly expanded the options available and the living will should not be used in most cases when execution of an advanced directive is contemplated. The living will directs the signer's doctor to withhold or withdraw medical treatment that only prolongs the dying process. Food and water, however, may not be removed. Persons in a permanent vegetative state could be left to linger for years while being fed. Therefore, it is strongly recommended that anyone executing an advanced directive and those who have the capacity to execute a new directive use the power of attorney for health care. That document allows greater flexibility and a wider range of choices.

Power of attorney for health care

The Powers of Attorney for Health Care Law (755 ILCS 45/4-1 et seq. (West 2000)) provides Illinois citizens with many more options in directing their end-of-life care as well as their general medical care should they become incapacitated. It is important to note that the statutory short form power of attorney for health care found in section 4-10 of the law (755 ILCS 45/4-10(West 2000)) is merely an acceptable form that may be conveniently used by the public. Other forms may also be used. The power of attorney may be modified in any way to reflect the wishes of the principal of the agency. Note, the second paragraph of the statutory form gives broad powers to the agent, including the authority to consent to placement in a nursing home, electroconvulsive therapy, psychosurgery and admission to a mental health facility. Immediately following that paragraph, however, are several lines the principal may use to expand or restrict the agent's powers. The second paragraph also offers three options that the principal may use to direct end-of-life care. The first directs the agent to consent to the removal of treatment if the burdens of the treatment outweigh the expected benefit. The second provides for life-sustaining treatment unless the person is in a vegetative state. The third option directs the agent to see that the principal receives all treatment without regard for the principal's chance of survival. Food and water are considered medical treatment under the Powers of Attorney for Health Care Law and may not be removed unless specifically authorized.

An agent is required to follow the wishes of his or her principal, even where the principal's desires conflict with the agent's own views. Thus, the most important means to assure a successful outcome of the principal/agent relationship is communication. The principal should not merely appoint an agent, but should also discuss in detail with the agent what he or she expects. This communication, of course, is best done at the time the document is executed and not when a crisis in the health of the principal has occurred.

Because the power of attorney for health care is such a broad grant of authority to the agent by the principal, the law allows the principal to revoke the document with ease. The principal need not have a full understanding of his or her condition in order to revoke the agency and may even do so for no reason at all. (755 ILCS 45/4-6 (West 2000)). This is a two-edged sword. It allows a principal who has changed his or her mind about treatment to modify the document freely as a person experiences changes in his or her life and how he or she feels about a particular type of treatment. It also allows persons who may no longer have the capacity to make reasoned decisions to override the long-standing beliefs they held when they possessed the capacity to consider all of the options dispassionately and with all of their faculties.

Power of Attorney for Property

The Statutory Short Form Power of Attorney for Property Law (755 ILCS 45/3-1 et seq. (West 2000)) is an equally broad grant of authority from a principal to an agent, this time to manage the principal's property. The statutory short form power of attorney for property found in section 3-3 of the law (755 ILCS 45/3-3 (West 2000)) allows the agent to make almost any imaginable transaction, including the sale of real and personal property and the resolution of tax matters. The list of granted powers ends with a grant of authority to deal with "[a]ll other property powers and transactions." Like the power of attorney for health care, the statutory short form power of attorney for property is merely a suggestion and may be freely modified at the time of execution to limit or extend the powers granted to the agent. Termination of a power of attorney for property, again, is liberal but acts taken by the agent before actual notice of the termination are valid. (755 ILCS 45/2-5 (West 2000)).

Declaration for mental health treatment

A declaration for mental health treatment, authorized by the provisions of the Mental Health Treatment Preference Declaration Act (755 ILCS 43/1 et seq. (West 2000)), is a rarely used but potentially powerful grant by a person with mental illness, while competent, to authorize another to make mental health treatment decisions should he or she become incapacitated by mental illness. The principal may authorize the attorney-in-fact, as the agent is called in this document, to consent to psychotropic medications, electroconvulsive therapy and admission to a mental health facility for up to 17 days. Again, the statutory form may be freely modified at the time of execution, with the principal even being able to consent to which medications he or she is willing to take and which he or she is not.

Unlike the power of attorney for health care, a declaration for mental health treatment may not be freely revoked. The principal and at least one physician must certify that the principal has decisional capacity prior to a revocation. (755 ILCS 43/50 (West 2000)). The declaration is not open-ended like the advanced directives previously mentioned but lasts only three years, unless the power under the document has been invoked and the principal is incapable on the third anniversary. If the principal is incapable, the authority granted under the declaration will continue until he or she becomes capable of making decisions. (755 ILCS 43/10 (West 2000)).

Health Care Surrogate Act

The Health Care Surrogate Act (755 ILCS 40/1 et seq. (West 2000)) allows medical decisions to be made for an incapacitated person without an advanced directive. Initially drafted to allow only end-of-life decisions, the Act has been expanded to allow a surrogate to make medical decisions when the patient's life is not in the balance. After the attending physician and a concurring physician declare that the patient lacks decisional capacity by noting the incapacity in the patient's chart, the doctor looks to a statutory hierarchy of individuals set out in the Act to make decisions for the patient. (755 ILCS 40/25 (West 2000)).

Once the surrogate is chosen, he or she has the authority to make decisions without resort to the courts. If no surrogate is found, then a guardian must be appointed to make decisions for the patient. (755 ILCS 40/20 (West 2000)). If more than one surrogate is in the highest ranking category for the patient, then the majority opinion as to treatment controls, with those dissenting having the option of going to court to have themselves appointed guardian. (755 ILCS 40/25 (West 2000)). If the surrogate is to make an end-of-life decision, then the doctors must also certify that the patient has one of three qualifying conditions: (1) The patient has a terminal condition without a reasonable prospect for recovery, death is imminent and application of life-sustaining treatment will only prolong the dying process; (2) The patient is in a permanent vegetative state and life-sustaining treatment, in light of the patient's medical condition, will provide only minimal medical benefit; or (3) The patient has an incurable or irreversible condition that ultimately will cause his or her death despite life-sustaining treatment. The patient's condition imposes severe pain or is otherwise an inhumane burden. The treatment must provide only minimal benefit given the patient's medical condition. (755 ILCS 40/10 (West 2000)).

The surrogate is required to make his or her decision based on substituted judgment. That is to say, the surrogate should try to make the decision that the patient would make if the patient were capable of making the decision. The surrogate, in addition to other information, should consider the patient's personal, philosophical, religious and moral beliefs and ethical values relative to the purpose of life, sickness, medical procedures, suffering and death. The surrogate shall, where possible, determine how the patient would weigh the burdens and benefits of initiating or continuing the treatment against the burdens and benefits of the treatment. If the surrogate is not able to determine what the patient would have done, then he or she is to make the decision based on what is in the best interest of the patient. In determining what is in the patient's best interest, the surrogate should weigh the burdens on and benefits to the patient of initiating or continuing the treatment against the burdens and benefits of the treatment and should take into account any other information, including the views of family and friends that the surrogate believes the patient would have considered if able to act for himself or herself. (755 ILCS 40/20 (West 2000)).

The surrogate may not make decisions regarding the property of the ward or deal with decisions that may need to be made for the long-term care of the incapacitated person. In the absence of a power of attorney, decisions regarding the disposition of property may require the appointment of a guardian.

For more information on these documents, you may wish to visit the Web site of the Illinois Guardianship and Advocacy Commission at: <http://gac.state.il.us/>.