Senior Citizens Handbook - Health Care Decisions

Senior Citizens Handbook - Health Care Decisions

Last updated: July 2010

(Chapter 3 Section 3 of Senior Citizens Handbook)

There may come a time when you are unable to personally make decisions or express your wishes concerning your health care. This section explains some of the ways in which another person can make these decisions on your behalf. With a Power of Attorney, you can give a named person the right to make these decisions. With a Living Will, you give your doctor the authority to withhold life-support if you are terminally ill. A Mental Health Treatment Preference Declaration can be used to say whether or not you want certain kinds of mental health therapies and to identify someone to make your mental health decisions for you. The Health Care Surrogate Decision Maker Law recognizes the right of family and others to make health care decisions for you in the absence of a valid Power of Attorney. A proper Do Not Resuscitate Order instructs health care professionals that you do not want them to use CPR to restart your heart and/or breathing.

Power of Attorney for Health Care

Reasons to Have a Power of Attorney for Health Care

A Power of Attorney for Health Care (POA) is a document in which you give a certain person the authority to make health care and personal care decisions on your behalf. The person to whom you give this authority is called your agent or your attorney in fact. Despite the use of the word “attorney” in the title of the document, the person appointed as agent usually is not a lawyer. It is usually a spouse or other close relative or friend.

If you are not physically or mentally able to make decisions or express your wishes, then someone else must make decisions for you. A Power of Attorney is a way for you to decide in advance who will make decisions for you and to give that person guidance on how you want them to handle your affairs.

What Can the Agent Do for You?

The Power of Attorney can be drafted to give your agent the authority to make decisions concerning only certain issues, or it can give the agent the permission to make all decisions concerning health care and personal care. This includes the authority to:

  • Consent to medical treatment 
  • Refuse or withdraw medical treatment, even if doing so will result in your death 
  • Admit you to or discharge you from any hospital, institution, home, residential or nursing facility, treatment center or any other health care institution -
  • Contract for any type of health care service/facility and bind you to pay for it 
  • Copy your medical records and consent to their disclosure

The agent can also be given the authority to make certain decisions after your death, on such things as making an anatomical gift, autopsies and the disposition of your remains.

How Does the Agent Decide What to Do?

The Power of Attorney document usually includes a section in which you state your wishes about whether you would want to receive life support and when you would want life support stopped. Your agent should follow what the document says. For health care decisions other than life support issues, your agent should decide what to do based on what you have previously said, or on what he or she thinks you would want done under the circumstances. If the agent has no guidance as to what to do to effect your wishes, the agent should take whatever action is in your “best interest.”

Limits on What the Agent Can Do

As long as you are able to make decisions and express your wishes, you, alone, have the authority to control your affairs. Your agent does not have the right to override your decisions. Also, you can have the Power of Attorney document drafted in a way that leaves out certain powers or limits them in some way.

Examples:

  • You can provide instructions in the POA regarding when life-sustaining measures should be withheld; 
  • You can provide a direction to continue food and fluids or life-sustaining treatment in all events;
  • You can provide instructions to refuse specific types of treatment that are inconsistent with your religious beliefs or unacceptable to you for any other reason, such as blood transfusion, electro-convulsive therapy, amputation, psycho-surgery, etc.

What Your Agent is and is Not Required to Do

The agent is not legally required to exercise the powers that you give him or her in the POA or to assume responsibility for your affairs. This is true regardless of your physical or mental condition. The agent you appoint can decline to act if he or she becomes ill or decides for any other reason not to handle your affairs. Whenever the power is used, however, the agent is always required to use due care to act for your benefit according to the terms of the POA.

Having More Than One Agent 

You can name more than one agent. However, only one person can be your agent at one time. If you name more than one agent, the power to act on your behalf will pass to the second agent only if the previous agent cannot or will not act on your behalf.

It is recommended that you sign this document in front of a notary public and witnesses.

How Long Does the Power of Attorney Last?

Generally, a Power of Attorney will remain in effect until your death, unless you state otherwise in the document. You have the right to end the POA at any time, regardless of your physical or mental condition. This can be done by destroying the document or by other means, but it is best to sign a formal written revocation.

You also have the right to change the POA at any time, in order to change your agents, add additional agents or to change other terms of the POA. Any changes must be made in writing, and signed and dated by you or by someone acting at your direction. To terminate or make changes to your POA, you should at least have some minimal understanding of what you are doing.

The Duties of Health Care Providers

When a health care provider is given a copy of the POA, the provider is required to make it a part of your medical records. Likewise, the provider must note in your records, whenever informed, that the agent has been changed or terminated.

Whenever a provider believes you lack the capacity to consent to necessary health care, the provider is legally required to consult with any known agent.

The doctor or other health care provider is required to comply with any power exercised by the agent in accordance with a POA. If the provider is unwilling to comply with the agent’s health care decision, the agent must arrange a transfer to another provider.

Who Should Have a Copy of Your Power of Attorney for Health Care?

It is important that your doctors have a copy of these documents. If you regularly use a certain hospital, you should give them a copy as well. You should give a copy to the people named as your agents and any other close family members. It is a good idea to keep a list of the people who have a copy. This way, if you make any changes in the future, you will be sure that they are notified.

Living Wills

What is a living will?

A Living Will is another type of advance directive, which is used to control decisions about life support. By signing a Living Will, you state that you do not want to receive any form of life support if your doctor determines that you are terminally ill and your death is imminent. The Living Will gives your doctor permission to withhold or discontinue life support if this happens.

There is a standardized form for the Living Will, but the declarations in the Living Will do not have to be made on that form.

Signing a Living Will

You must sign a Living Will in the presence of two disinterested witnesses. A disinterested witness is someone not related to you by blood or marriage. The witness also must not be someone who is financially responsible for your health costs.

What is the Difference Between a Living Will and a Power of Attorney?

A Living Will is much different than a Power of Attorney. The Living Will does not appoint an agent to speak for you to make sure that your wishes are followed. The Living Will does not deal with any health care decisions other than life support.

Also, a Living Will authorizes the withdrawal or withholding of life sustaining treatment only under the limited circumstances described above. By contrast, a Power of Attorney gives you the ability to specify the circumstances under which you would want life support to be withheld or withdrawn.

Do You Need to Have a Living Will if You Already Have a Health Care Power of Attorney?

If you do not wish to receive life support, you may wish to sign a Living Will in addition to a Power of Attorney. If the agent that you name in the POA is not able or available to act on your behalf, then the POA cannot be used to withhold or withdraw life support. But if you have a Living Will, your doctor can follow your wishes. It is important to understand that the Living Will is used only if your POA for Health Care cannot be used because your agents cannot or will not act.

Who Should Have a Copy of Your Living Will

It is important that your doctors have a copy of your Living Will. If you regularly use a certain hospital, you should give them a copy as well. You should give a copy to anyone named as your agents under a Power of Attorney and to close family members. It is a good idea to keep a list of the people who have a copy. This way, if you make any changes in the future, you will be sure that they are notified.

Revocation of a Living Will

You can revoke the Living Will at any time, regardless of your mental or physical condition. This can be done by:

  • burning, tearing, or otherwise destroying the document;
  • signing a written revocation; or,
  • telling a witness who is 18 years or older that you want to revoke your Living Will. This witness must then put it in writing.

Mental Health Treatment Preference Declaration

What Is a Mental Health Treatment Preference Declaration?

A mental health treatment preference declaration is a legal document that may be useful for persons with a mental illness who anticipate that they may be unable to make mental health decisions for themselves in the future.

Example: A Declaration may be appropriate if your illness is episodic (you have occasional periods where your symptoms are more severe) or progressive (it is expected to get worse over time).

In the Declaration, you can:

  • Say whether or not you want to receive electro-convulsive treatment and/or psycho-tropic medicine when you have a mental illness and are unable to make these decisions for yourself;
  • Say whether or not you would like to be admitted to a mental health facility for up to 17 days of treatment;
  • Choose someone to make your mental health decisions for you. That person is called your attorney-in-fact.

Naming Your Attorney-In-Fact

You do not have to name anyone as your attorney-in-fact. If you wish, you may simply use the Declaration to inform your doctor of your wishes. However, by appointing an attorney-in-fact, you are putting that person in a better position to speak for you to make sure that the doctor knows and follows your wishes. Also, an attorney-in-fact will be able to make decisions for you if an issue arises that the Declaration did not address.

The person you name must be age 18 or over and should be someone you know well and who you trust completely to respect your wishes. The person does not have to be a real attorney. You can name an alternate to take the place of the first person you name if that person cannot or will not act for you.

Certain persons do not qualify to serve as your attorney-in-fact. They include

  • your doctor; and
  • any owner or employee of a health care facility where you reside.

Your attorney-in-fact must accept the appointment in writing before he or she can start making decisions regarding your mental health treatment. At any time after acceptance, the person may withdraw by giving notice withdrawl to you and to your doctor.

What the Attorney-in-Fact Can Do

The attorney-in-fact must make decisions consistent with any desires you express in your declaration unless a court orders differently or an emergency threatens your life or health.

Example: If your Declaration states that you do not want to receive psycho-tropic drugs, the attorney-in-fact cannot authorize this on your behalf. However, if your doctor determines that you are very likely to harm yourself if you do not take the drugs, your doctor does not have to follow your instruction or the instruction of your attorney-in-fact.

If the Declaration does not state what you want done, then the attorney-in-fact must make the treatment decision that he or she believes to be best for you. He or she has the right to see your medical records and talk with your doctors, so as to make an informed decision about your mental health care.

How to Make the Declaration

There is a sample form in the statute cited at the end of this section which is readily available. Your must sign the form in the presence of two witnesses, who must also sign the form, indicating that they know you, that you appear to be of sound mind and that no one forced you to sign the form.

Certain people (and any of their relatives) cannot act as witnesses, including:

  • Any person related to you;
  • Your doctor or any mental health service provider;
  • The owner of a health facility where you are a patient.

After the Declaration is signed, it should be delivered to your treating doctor(s). This allows your doctor to know your wishes and to follow them in the even that the Declaration becomes effective.

When the Declaration Goes Into Effect

Even after you sign a Declaration, your doctor and mental health service providers must continue to speak directly with you. They also must follow your wishes, for as long as you are able to understand the information well enough to make informed decisions about your care.

However, there may come a point where you do not have that understanding or where you cannot communicate your wishes concerning your mental health care. If either a judge or two doctors determines that to have happened, you are deemed to be incapable, which means your doctors and mental health care providers must follow your instructions in your Declaration. They also must follow instructions from your attorney-in-fact, unless those instructions conflict with specific terms of the Declaration.

Your doctors and providers do not have to follow the terms of the Declaration if:

  • A court order contradicts the terms of the Declaration; or
  • There is an emergency involving an immediate danger to life or health.

How Long the Declaration Lasts

The Declaration expires three years from the date you sign it, unless you revoke it before that time. If a judge or two doctors deem you incapable and invoke the Declaration before the three years are up, it will remain in effect after the three years, for so long as you remain incapable.

Amending or Revoking a Declaration

You may amend or revoke the Declaration at any time you have not been found to be incapable. Be sure to give any amended Declaration to your doctor and other mental health care providers. Once you have been found to be incapable, you cannot amend or revoke it, even if you change your mind about its terms.

Once you sign a Declaration, it can be difficult to revoke it if you later change your mind. A revocation requires all of the following:

  • The revocation must be in writing and you must sign it;
  • A doctor must also sign it, certifying that you are capable; and
  • The revocation must be given to your treating doctor.

Health Care Surrogate Decision Makers

When a Surrogate Decision Maker Can Make Medical Treatment Decisions

The Health Care Surrogate Act allows your family members, friends or guardians (called surrogates) to make a broad range of medical treatment decisions on your behalf, including decisions about life support. A surrogate is allowed to make such decisions only if:

  • You cannot make and communicate these decisions on your own; and
  • You do not have other advance directives, such as a Living Will or Health Care Power of Attorney in effect, or they are not applicable or invalid.

Examples:

  • You have signed a Power of Attorney for Health Care, but the person you appointed as your agent has died, and you are no longer able to make or communicate your own health care decisions. Because there is no agent, your Power of Attorney is not operative. Your friends, family or guardian can make medical treatment decisions on your behalf under this law.
  • You have signed a Living Will stating your desire not to receive life support, and you are no longer able to make or communicate your own health care decisions. A decision must now be made about whether to change your medications. Because this is not an issue concerning life support, your Living Will is not applicable. Your friends family or guardian can make the decision concerning your medication under this law.

A Surrogate Decision Maker can make health care decisions on your behalf only if your treating doctor certifies in writing that you lack the ability to make and communicate your own decisions about medical treatment.

If a doctor makes that determination, the doctor is then required to try to determine whether you have another kind of advance directive regarding medical treatment, such as a Health Care Power of Attorney.

If the doctor cannot identify a valid or applicable advance directive, the doctor must try to determine whether you have any relatives or friends available to serve as a surrogate. Once a surrogate is identified, that person is legally authorized to make a decision on your behalf. The doctor is then legally authorized to follow the surrogate's decision on medical treatment.

When making decisions, the surrogate is required to do what he or she thinks you would want done under the circumstances, and he or she should take into consideration your personal, religious and moral values.

When a Surrogate Decision Maker Can Make a Decision to Forego Life Sustaining Treatment

The Act permits a surrogate decision maker to make the decision on your behalf to forego life sustaining treatment, but only if you are:

  • terminally ill;
  • permanently unconscious; or
  • have an incurable or irreversible medical condition that will ultimately result in death and which causes severe pain or some other inhumane burden.

Before a surrogate decision maker can decide whether to forego life support, your treating doctor and at least one other doctor must make a finding that you lack the ability to make the decision.

Whenever a doctor makes that finding in a case involving life support, the doctor must inform the patient. If you object to the surrogate decision maker or object to the decision made to terminate life support, then this law will not apply. In that situation, a decision whether to forego life support can only be made through a court proceeding.

Choosing the Surrogate Decision Maker

The following order of priority is used in determining who will serve as the surrogate decision maker:

  • The patient's legally appointed "guardian of the person";
  • The patient's spouse;
  • Any adult son or daughter of the patient;
  • Either parent of the patient;
  • Any adult brother or sister of the patient;
  • Any grandchild of the patient;
  • A close friend of the patient;
  • The patient's legally appointed "guardian of the estate."

When there is more than one person at the same priority level, they are required to try to reach an agreement about the decision to be made. If they cannot reach an agreement, the doctor will honor the decision made by the majority of the persons in the priority level, unless the minority initiates a court case to resolve the issue. If any person of a lower priority level disagrees with the decision maker under this law, they too may file a case in court.

Do Not Resuscitate Orders

Together with an advance directive such as a health care Power of Attorney or Living Will, you can complete an Illinois Department of Public Health (IDPH) Uniform Do-Not-Resuscitate (DNR) Order Form. When properly completed, the order instructs emergency medical crews, physicians, nursing home and hospital personnel that you do not want them to use CPR to restart your heart and/or breathing, and that CPR should not be attempted.

CPR is short for "cardiopulmonary resuscitation" and refers to various medical procedures used in an effort to restart a person's heart and/or breathing.

Without knowing about the existence of such an order, health care professionals will generally begin CPR when your heartbeat and/or breathing stop. On the other hand, a valid DNR Order must be honored in nursing homes and hospitals, and by emergency medical services (EMS) personnel.

Before completing a DNR Order, you should discuss this option with your health care professional and with family members. Your decision should take into account your current health as well as your personal views regarding resuscitation in the event of an unforeseen accident or surgery. You should think about CPR in any discussion about life support mechanisms or organ donation.

To be valid, you or your legally authorized representative must sign the DNR Order Form. Your physician and an additional two witnesses must also sign the form. The original DNR Order should be kept safely in your home to present to EMS personnel upon an emergency call. Your doctor should also have a copy in your medical files.

Advocacy Tip: You should not fill out a DNR Order if you want all resuscitation efforts performed under all circumstances. You are never required to complete a DNR Order as a condition of treatment or against your wishes.

The IDPH Uniform DNR Order Form now differentiates between "full cardiopulmonary arrest" and a "pre-arrest emergency."

A "pre-arrest emergency" means that breathing is labored or stopped but the heart is still beating.

A DNR Order should be completed only when you do not want CPR attempted in the event of full cardiopulmonary arrest. Once you decide that you want a DNR Order, then you have two choices on what you want to happen in the event of a "pre-arrest emergency." You can decide that you want CPR in this situation or that you do not want CPR in this situation.

Even if you have a DNR Order, your medical providers will always provide measures other than CPR to promote your comfort and dignity.

The IDPH Uniform DNR Order Forms are available via the Department's website or by calling (217) 785-2080.

Where to Go for More Information

 

Helpful Organizations
The following organizations may be able to help you with

For a list of organizations in your area that may be able to help you, enter your zip code.

       

Feedback

We welcome your comments and suggestions

User Survey - Please take a moment to fill out our User Survey to help us to provide better service.

Please do not email legal questions or information about your problem. We will not answer legal questions or provide legal assistance. You can find referrals to legal organizations that may be able to help you by clicking here.