Research Tip: The Right to Make Decisions About Medical Care

Living wills have been a hot topic at the reference desk lately. Illinois has three statutes that protect the rights of individuals to control decisions relating to their own medical care, including decisions to decline treatment or to direct that it be withdrawn, even if death will result.

The Illinois Living Will Act, 755 ILCS 35/, allows an adult of sound mind to sign a document directing that if he or she "is suffering from a terminal condition, then death delaying procedures shall not be utilized for the prolongation of his life." The Act defines a "death delaying procedure" and specifically provides: "Nutrition and hydration shall not be withdrawn or withheld from a qualified patient if the withdrawal or withholding would result in death solely from dehydration or starvation rather than from the existing terminal condition." 755 ILCS 35/2(d). The Act includes a form of living will that may be used, at 755 ILCS 35/3(e).

The Powers of Attorney for Health Care Law, 755 ILCS 45/Art. IV, allows an individual to delegate the power to be informed about and to make decisions regarding his or her personal care and medical treatment, including the right to decline medical treatment or to direct that it be withdrawn, to a trusted agent, whose power to make personal and health care decisions for the individual will be effective to the same extent as though made by the individual. "Health care" is defined to mean "any care, treatment, service or procedure to maintain, diagnose, treat or provide for the patient's physical or mental health or personal care." 755 ILCS 45/4-4(b). The Powers of Attorney for Health Care Law includes a short form power of attorney for health care that may be used, at 755 ILCS 45/4-10(a), but allows for the use of other forms of power of attorney for health care.

The Health Care Surrogate Act, 755 ILCS 40/, applies to patients who lack decisional capacity and who have no known applicable living will or power of attorney for health care. The Act "is intended to define the circumstances under which private decisions by patients with decisional capacity and by surrogate decision makers on behalf of patients lacking decisional capacity to make medical treatment decisions or to terminate life-sustaining treatment may be made without judicial involvement of any kind."

The Health Care Surrogate Act sets the following priorities among qualified "surrogate decision makers," which are defined at 755 ILCS 40/10: "(1) the patient's guardian of the person; (2) the 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; (8) the patient's guardian of the estate." 755 ILCS 40/25(a). "A surrogate decision maker shall make decisions for the patient conforming as closely as possible to what the patient would have done or intended under the circumstances . . . . If the adult patient's wishes are unknown and remain unknown after reasonable efforts to discern them or if the patient is a minor, the decision shall be made on the basis of the patient's best interests as determined by the surrogate decision maker." 755 ILCS 40/20(b)(1).

SIU's Self-Help Legal Center has an information packet on How to Protect Your Assets and Your Wishes for Medical Treatment by Having a Durable Power of Attorney for Health Care and Property in Illinois and a forms supplement that includes a forms guide as well as forms for:

• Durable Power of Attorney for Health Care;


• Durable Power of Attorney for Property;


• Resignation of an Agent; and


• Notice of Revocation of a Durable Power of Attorney.

Illinois Legal Aid Online has information on these topics in:

• Chapter 3 of the Senior Citizen Handbook;


• Chapter 8 of the Guidebook of Laws and Programs for People with Disabilities; and


• Wills, Living Wills, and Powers of Attorney.

For more information, go to these websites:

• Illinois State Bar Association: Your Health Care: In Illinois, Who Decides?


• Illinois Department of Public Health: Statement of Illinois Law on Advance Directives (includes Living Will Declaration Form, Declaration for Mental Health Treatment Form, Do Not Resuscitate (DNR) Order, and Power of Attorney for Health Care, Illinois Statutory Short Form, in English and Spanish)


• American Bar Association Commission on Law and Aging:
  
  • Consumer's Tool Kit for Health Care Advance Planning
  
  
  • Health & Financial Decisions: Legal Tools for Preserving Your Personal Autonomy


• American Bar Association Division for Public Education: Practical Law:
  
  • Wills & Estates
  
  
  • Law for Older Americans: Health Care Advance Directives


• FindLaw for the Public: Living Wills & Healthcare Power of Attorney (includes information, a table of state laws, and sample forms)


• Kiplinger.com: Your Will Be Done (March 23, 2005 article)


• Nolo.com:
  
  • Health Care Declarations and Powers of Attorney for Health Care: How They Work
  
  
  • Advance Directives, Living Wills, Powers of Attorney: What's the Difference?


• SIU School of Medicine Clinical Ethics Center: Advance Directives Information and Forms


• U.S. Living Will Registry: Advance Directive Forms

Within the SIU Law Library, researchers can find forms for living wills and powers of attorney for health care in the following Illinois Institute for Continuing Legal Education ("IICLE") publications and IICLE SmartBooks:

• Guardianship for Disabled Adults, Advance Directives, and Mental Health Law 2004 Edition, on reserve at KFI1306 .A53 2004;


• Advising Elderly Clients and Their Families 2000 Edition, updated 2003, on reserve at KFI1291.A3 A38 2000;


• Starting Points: The Fundamentals of Practice in Illinois 2005 Edition, on reserve at KFI1280 .S72 2005 (living will form only).

IICLE SmartBooks are available to SIU Campus Users through the Law Library's Subscription Electronic Resources page.