I wouldn’t want to live like that poor Terri Schiavo—having to be fed through a tube. Wouldn’t that be terrible? I signed a living will last week though, so my family and I will never have to go through that.”
Many such statements were made last month when the plight of Floridian Terri Schiavo was played out on television, in the newspapers, and around the office water cooler. Possibly, many of you completed a living will form available online, at your doctor’s office or hospital, or even at the legal forms department of the office supply store. However, if you’re relying on an Illinois living will to document your intentions regarding how you wish to be treated if you have an incurable illness, you’ll be disappointed. As with many things legal, the details and definitions are important.
In Illinois, you must be terminally ill and death must be imminent before a living will can govern your health care. Terri Schiavo wasn’t terminally ill. The Illinois Living Will Act allows a person to direct that no “death delaying procedures” be used to postpone the moment of death. However, the Living Will Act specifically excludes nutrition and hydration as a “death delaying procedure.” The act states that “[n]utrition and hydration shall not be withdrawn or withheld from a qualified patient if the withdrawal or withholding would result in death solely from dehydration or starvation rather than from the existing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.” The text of the standard living will doesn’t explain this important exception. Therefore, if you signed a living will—but don’t want to be kept alive by a feeding tube—your living will is of no assistance.
If you’re relying on someone, such as your spouse, to tell your doctors your wishes, an Illinois living will is again insufficient. An Illinois living will doesn’t appoint a decision-maker or surrogate; the form doesn’t direct any one person to advocate to the doctor that this is what you would have wanted. Instead, a living will applies only to patients with an “incurable and irreversible injury, disease, or illness judged to be a terminal condition by my attending physician who has personally examined me and has determined that my death is imminent except for death delaying procedures.” Therefore, the decision will be made by your attending physician—not your spouse or family member.
If you do want someone to speak up for you—to say this is what you want—you should execute an Illinois Statutory Power of Attorney for Health Care. This document grants to an agent all the powers an individual may have as to consenting or refusing care, treatment, or procedures to maintain, diagnose, or treat a physical or mental health condition. Because this document gives others the power to make life and death decisions, the document itself is more elaborate. In a power of attorney for health care, you can specifically identify what decisions your agent can and can’t make for you. It also requires you to indicate if you don’t want life sustaining treatments to be provided if the burdens of treatment outweigh the benefits, don’t want life sustaining treatments provided if the condition is irreversible, or do want life sustaining treatments provided regardless of your condition.
There’s significantly more flexibility and specificity available with a power of attorney for health care than with a living will. One of the greatest benefits of a power of attorney is you remove a great burden from your family and loved ones while maintaining control over your own health care decisions. You also provide the necessary evidence and legally controlling documents that will prevent the expense and ordeal of requiring your loved ones to prove what your desires are if you’re terminally ill and can’t speak for yourself. Moreover, a health care power of attorney allows your agent to speak for you if you’re unable to do so. Be aware that in Illinois, if you have both a living will and a power of attorney for health care, the power of attorney will take precedence over the living will.
Finally, if you don’t have any written advance directive, the law provides who can serve as your surrogate decision-maker. In Illinois, priority is given to these people in this order: your guardian, spouse, adult child, parent, adult sibling, adult grandchild, your close friend, and the guardian of your estate. So, in Illinois, as in Florida, Michael Schiavo would have priority to declare his wife’s wishes over Terri Schiavo’s parents. If you don’t want your spouse to make this decision for you—either because you don’t trust your spouse or don’t want to place that burden on your spouse—you should get a written advance directive.
If the Schiavo case has made an impact on you, and you want to decide for yourself how you would be treated under similar circumstances, you should contact your attorney so the appropriate document can be created for you. IBI