Posted by Ms. Maria BergerJul 03, 20190 Comments

For many, the Terri Schiavo case has highlighted what estate planning attorneys have known for years: that end of life and incapacitation planning is the most important thing most people never do. Every time a new estate planning client walks into my office I tell them the same thing - having a will or trust is important, but it only determines what happens to your material possessions after you are gone. It is far more important to have in place the documents that will determine what happens to YOU, while you are still alive and in this world, but are unable to speak for yourself.

Putting your wishes about end-of-life care into writing can help your family make difficult decisions

The Situation: What are you planning for?

By now, Terri Schiavo's situation is well-known to most Americans, and indeed around the world. Though the particular aspects of her disability are unique to her, her situation is not. Many, many people, at some point in their lives, find themselves unable to communicate their wishes regarding their own medical care and treatment to the people around them, including their doctors and loved ones. Often, this occurs toward the end of life, as people age and grow ill. But, just as often, incapacitation occurs suddenly, as the result of an accident, surgery, or sudden illness.

Furthermore, it is not just those who are severely incapacitated, or in a Permanent Vegetative State (PVS) who need this planning. Terri Schiavo's is an extreme example, but the truth is that anyone who is temporarily unable to speak or communicate for themselves should have planning in place. Whether you are in a coma, have a stroke, or are recuperating from an accident or planned surgery, you will need someone else to make your health care decisions for you. Since no one knows when, or how, these situations might arise, and since it is too late to put this planning in place once you are already incapacitated, every person should have the proper documents in place now, while they are healthy and able to make their own determinations.

The Documents: The Health Care Power of Attorney and Living Will

In Illinois, there are two basic documents which are commonly used for end-of-life and incapacitation planning: the Health Care Power of Attorney and the Living Will. In Illinois, both forms are created and authorized by statute in the Illinois Living Will Act, 755 ILCS 35/ et seq., and the Health Care Surrogate Act, 755 ILCS 40/ et seq.

The document most people are familiar with is the Living Will. The Living Will, or Declaration, states what your wishes are regarding the use of what are called "death-delaying procedures," as defined by statute. A Living Will states that you do not wish any death-delaying procedures to be used if you are in a terminal situation. It is important to note that, under Illinois law, nutrition and hydration may not be withdrawn or withheld based on a Living Will where doing so would result in death solely from the withdrawal or withholding of the nutrition or hydration rather than from the underlying terminal condition.

Though not as familiar to most people, the Health Care Power of Attorney (HCPOA) is the most important document for end of life and incapacitation planning. Unlike the Living Will, the main purpose of the HCPOA is not to indicate your wishes regarding death-delaying treatments (though some basic choices can be made), but rather to designate a person to act as your agent and make health care decisions for you when you are unable to do so yourself. In the context of the Terri Schiavo case, an HCPOA would have determined who had the final say regarding the removal of her feeding tubes: her parents or her husband.

Why you should have an HCPOA, and not just a Living Will

While the media tends to focus on the Living Will because of its familiarity, the HCPOA is a much more important document to have, whether or not you also choose to have a Living Will.

First of all, unlike the Living Will, the HCPOA does not require that you reject all death-delaying procedures. The HCPOA simply designates a person to act for you if you cannot act for yourself. You can limit the powers of the agent to consent to particular procedures if you wish, but you do not have to. For some people, it is important that they are given death-delaying treatments in certain situations, so a Living Will would not be appropriate.

Second, and maybe the most important reason to have the HCPOA, is because they are more likely to be followed by hospitals. Hospitals are simply more comfortable with the Health Care Power of Attorney than with the Living Will. Even a properly executed Living Will that has been placed on file with a hospital will sometimes not be followed because of concerns over liability issues. With a Living Will, the final decision-making lies with a doctor who has to interpret the Living Will and apply it to your situation. This isn't a responsibility most doctors will take on willingly. Thus, if there are any irregularities at all with your Living Will, the hospital may choose not to follow it, in order to avoid being liable to your heirs for wrongful death.

However, if you sign and execute the proper Health Care Power of Attorney form, and your designated agent speaks on your behalf, the hospital is much more likely to promptly follow your wishes. Illinois law provides that a hospital that relies on the direction of an agent named under a properly executed statutory Health Care Power of Attorney form is not liable for harm resulting from that reliance. Most hospitals and doctors would much rather follow the decisions of a named agent, rather than take on the responsibility of those decisions themselves.

Finally, a Living Will only applies in terminal situations, whereas the Health Care Power of Attorney applies in any situation where you can not speak for yourself. So, for instance, if you become incapacitated, but you are not likely to die directly from that incapacitation, a Living Will will not be operative. In that situation, only an HCPOA would be effective.

It is possible to have both the Living Will and the Health Care Power of Attorney, and they can be drafted so that they do not conflict with each other. However, if you do have both, you should work with an attorney to be certain that the documents are drafted properly.

Advance Directives are not just for the elderly

Why do I need an attorney? Can't I do this on my own?

Of course, any statement I make here can be seen as self-serving, but I assure you, there are very good reasons to have an attorney help you draft your HCPOA or Living Will.

First, it is very important that you choose the proper form. Each State's law is different, and, especially now, there are a lot of forms circulating that may or may not be appropriate for Illinois. Illinois law provides that a hospital will be not be liable for harm to you resulting from reliance on an HCPOA only if the statutory forms are used. This is extremely important to ensure that your wishes are followed promptly. If a hospital is presented with a form that it does not recognize, it is likely that it will be sent to their legal department, which may be reluctant to approve reliance upon any form that it does not recognize. All the while, you are lying in a hospital bed, and your wishes are being ignored. By the time the hospital agrees to follow the agent designation, it may be too late.

Second, it is also important to have an attorney review your forms to make sure they are not inconsistent with each other, and that they are properly signed and executed. An improperly executed form will not be followed by the hospital and your wishes may be ignored.

Finally, there are other legal issues related to Health Information Privacy laws that attorneys will be aware of and can plan for. Depending upon when you choose to have your HCPOA come into effect, it may be wise to execute a HIPAA release, which authorizes the doctors to give your agent information about your health condition so that they can make the proper determinations. Though Agents under a properly designated Health Care Power of Attorney should, under HIPAA, be entitled to your health information, many hospitals are still hesitant to do so without the proper release. (As of 2012, the Illinois statutory HCPOA form has been changed to include a HIPAA release to solve this problem. If you executed a form prior to January of 2012, you may want to consider seeing your attorney to execute the newer form.)

In short, there are many issues that only an experienced estate planning attorney is qualified to handle. Since these documents are relatively inexpensive (no attorney I know is getting rich drafting them), there is no good reason not to use an attorney to be certain your planning is done properly.

A final note about special religious dictates

There are some religions which have special requirements regarding disposal of remains and certain death-delaying procedures, such as the desire to not receive or give a blood transfusion or organ donation. These organizations often hand out prepared forms for their members to fill out. It is important that anyone wishing to ensure that their specific religious desires are carried out NOT rely solely upon these forms. For all of the reasons stated above, it is important to use only the statutorily created HCPOA and Living Will. Any specific religious wishes can be drafted into the HCPOA, and will be much more likely to be followed when in that format.

For more information, or to make an appointment, contact us, or another qualified estate planning attorney.