Power of Attorney for Healthcare
Serious illnesses or accidents are often sudden and may occur at any moment. In the event you are incapacitated or otherwise can't make decisions regarding your health, it is important that you have someone who can speak on your behalf.
Under the Health Care Surrogate Act, a guardian, parent, spouse, child, sibling, relative, or friend of a person who lacks capacity to make medical decisions can act as a substitute decision maker if there is no power of attorney. 755 ILCS 40/1, et seq. This act requires no court intervention and legally authorizes them to make decisions on life-sustaining treatment when a doctor has determined the person lacks decisional capacity.
Illinois courts have held that “a surrogate can exercise the right for an individual lacking decisional capacity only if: (1) the individual is terminally ill as defined in section 2(h) of the Will Act; (2) the individual has been diagnosed as irreversibly comatose or in a persistently vegetative state; (3) the individual's attending physician and at least two other consulting physicians have concurred in the diagnosis; (4) the individual's right outweighs any interests of the State; (5) what the individual would have decided is ascertained through clear and convincing evidence; and (6) a court enters an order allowing the surrogate to exercise the individual's right to refuse or terminate treatment.” Longeway, 133 Ill.2d 33 (2d. 1983); Greenspan, 558 N.E.2d 1194 (2d. 1194).
Under this act, the first person in line to make a medical decision on your behalf would be your spouse. If you are going through the divorce process with your spouse, you may not want them to be able to make these sorts of decisions on your behalf. In this case, or generally, you may appoint someone as your power of attorney for healthcare "agent."
Selecting an Agent
The selection of your agent should be thoughtfully considered, as they will ultimately have the final decision-making authority in instances where you are no longer able to make your own decisions. The goal should be to find an agent who will have your best interests in mind and will make decisions that align with your personal values and wishes. You should discuss this with whomever you are considering to be your agent to inform them of your wishes. Some things you may want to consider talking to them about are:
How important it is for you to avoid pain and suffering;
If it is more important to you to live as long as possible or avoid long-term suffering;
Any cultural or religious beliefs you want them to abide by;
If you would rather spend your last moments at home or in a hospital;
If you wish to donate parts of your body to medical science after death.
It is important to note that many online resources may help guide you and your potential agents through a conversation on these issues. You may find it helpful to look at these resources when considering and discussing your wishes.
When choosing an agent, you should select a family member, friend, or any person who is 18 years or older, who knows you well, who is trusting, who will be emotionally strong if you become very ill, and who can be available and willing to accept this role in a time of need. It is important that you appoint someone to be your agent early on, as it may increase your chances of getting the medical treatment you want in the event of an emergency.
How to Make Someone Your Agent
It is imperative that you put your choice of agent in writing. The legal document used is a form often called an "advance directive." You may use this form or any other one that complies with the legal requirement of the Illinois Power of Attorney Act, 755 ILCS 45/.
Regardless of the form you choose to fill out, ensure you have a witness, or the form won't be valid. 755 ILCS 45/ 4-5.1 provides that a witness must be over the age of 18, have a sound mind, and not be the agent, successor agent, or relative of either party. Additionally, a witness may not be your physician, mental health service provider, or an owner or operator of your healthcare facility.
Although this form is a legal document, you do not need to have it filed with the court or get it notarized, although you may if you wish to. You do not need an attorney to fill out this form or to appoint someone as your agent. However, it is recommended that you get an attorney so that you can understand what you are legally committing to and feel comfortable with your decisions. An attorney may also serve as your witness.
After you, your witness, and the agent fill out and sign the form, it is suggested that you keep an electronic copy along with your original. You should also give your agent, physician, family, and friends a copy of the form. When you go to the hospital, it is advised to take a copy with you so that if something goes wrong, they will know who your agent is.
It is suggested that, when you are going through a divorce, if you hadn't otherwise, to fill out these forms during your divorce so that your spouse is not your power of attorney for your healthcare. The Law Office of Erin M. Wilson LLC has these forms to fill out during your divorce process. It is important to note that you do not need to notify your spouse before or during a divorce that you are assigning someone else as your power of attorney.
If you are interested in how a power of attorney for healthcare can be included in your divorce process, contact The Law Office of Erin M. Wilson LLC for a consultation to discuss appointing an agent.
NOTICE: This blog is intended solely for informational purposes and should not be construed as providing legal advice. Please feel free to contact us with any questions you may have regarding this blog post.