Advance Directives


With the nationwide publicity surrounding the Terri Schiavo case there has been much talk about living wills, do-not-resuscitate orders, powers of attorney, etc. Documents that pertain to end-of-life issues are known collectively as Advance Directives. Typically they address medical, family and financial decisions made on behalf of somebody who is no longer capable of making their own decisions.

What types of decisions are we talking about here? Broadly, we can group them into three categories:

  • Family issues, most prominently involving the care of dependent children
  • Financial management of your affairs and property
  • Medical decisions regarding types of care and prolongation of life

First, let’s be clear that your will, if you have one, does not come into play until you die. If you become mentally disabled, enter a coma or are otherwise unable to make your wishes known, you will need to use other means to do so. If you don’t, the state steps in and appoints a guardian to represent you, typically a close family member (laws vary from state to state). This may or may not be the person you would have chosen and that person may not know your wishes. The family and financial issues also need to be addressed in your will, of course, but the medical ones are almost entirely of pre-death significance.

Living Will

The simplest and probably best known device for specifying your medical wishes is the living will. This is a document that lists what you want done in certain situations. It does not designate a person to make decisions; thus, it cannot take into account unforeseen circumstances. With today’s rapid advances in medical technology it is difficult to anticipate the types of decisions that may need to be made and the factors that go into them. Still, a living will is better than nothing.

Power of Attorney

A power of attorney (POA) is a legal document that appoints an agent to make decisions on your behalf. There are many types of POA’s, with various time frames and scopes. For example, you could appoint an agent to take care of a single financial transaction while you are out of town. More typically, you could give POA to a financial advisor to manage all of your finances on an ongoing basis.

POA may be revoked at any time as long as you are still mentally capable of doing so. In fact, unless specifically stated to the contrary, a POA is automatically revoked if you become mentally incapacitated. A POA that continues after this point is called a durable power of attorney (DPOA).

Durable Power of Attorney for Health Care

A Durable Power of Attorney for Health Care (DPAHC) is a type of DPOA that covers these end-of-life medical issues. It appoints a surrogate to make the medical decision that you no longer can and provides guidelines in as much detail as you wish. For example, you could specify

  • What procedures to perform under what circumstances (coma with brain activity, vegetative state, terminal illness with no chance of recovery, etc.)
  • When to withhold feeding and or water
  • What resuscitation efforts to try and when
  • Organ donation
  • Autopsy

This is probably the best way to make your wishes known and also name somebody to make decisions on issues that you did not or could not anticipate. If you use a DPAHC in place of a living will it is important to still spell out your wishes, both to assure that they are known and to relieve a possible burden of guilt on the decision maker. It can be a very difficult decision for a family member to take the responsibility for “pulling the plug”.

Illinois Forms

For Illinois residents the Illinois Guardianship & Advocacy Commission web site (gac.state.il.us) has sample legal forms that can be used. While it is still advisable to consult an attorney, these documents are a good starting point and contain imbedded explanations of the various terms and issues. Another state site is the Illinois Department of Public Health overview of Advance Directives at www.idph.state.il.us/public/books/advin.htm.

Another good site is www.agingwithdignity.org, which offers a popular living will form called 5 Wishes. You can view a non-printable version of this non-legalese document or order a printed copy.

Disclaimer

This article is for information only and is not meant to provide legal advice. Laws in this area vary from state to state and are constantly evolving. Formal documents should be drawn up by an attorney specializing in such instruments and should be reviewed periodically to assure that they are still in compliance with state laws and still correspond to your wishes.