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Sunday, May 1

Since you asked: One of an occasional series on legal issues in Social Work practice

Sandra G. Nye, JD, MSW

The term “Living Will” is on the lips of many in the wake of the Terri Schiavo tragedy. The populace is advised to “get a living will” to avoid agony for patient and family when decisions of life or death must be made and the patient is unable to express his or her wishes. Illinois has several vehicles through which a person, while capable of so doing, may make and communicate treatment and end-of-life decisions and assure that those decisions will be implemented in the event of later incapacity. The much touted “living will” is one of several vehicles under Illinois law that enables individuals to control their own destinies to the extent possible. It may not be the best one. The Living Will Act was enacted in Illinois in 1983 in response to the national public outcry over the case of Karen Quinlan whose parents had to fight the health care establishment to withdraw life support from their brain dead daughter who was being kept alive on a respirator. At around the same time, a Roman Catholic prelate made a similar decision for himself. These two cases launched a widespread debate in which several religions participated. This field of law has developed over time in Illinois and elsewhere.

 In the 1990 case of Murphy v. Gelman, the Illinois Supreme Court held that a guardian of the person has the power to seek a court order withdrawing artificial feeding and hydration from a ward in a chronic vegetative state. It further held that when, as the result of incurable illness, a patient cannot chew or swallow, and where a death-delaying feeding tube is withdrawn in scrupulous accordance with law, the ultimate agent of death is the illness and not the withdrawal. I like to think that the Schiavo case could not have happened here in Illinois in 2005.

 It is important to understand the Illinois alternatives so that the best and correct vehicle can be used. In our office, we encourage the use of the Durable Power of Attorney for Health Care rather than a Living Will. The POA does everything a living will can do, but offers the declarant much greater and more detailed control over his or her life and treatment decisions, including the right to forego nutrition and hydration when death is imminent.

 The following synopses of Illinois statutes will serve as an overview of what is available. Space limitations do not permit producing the statutes here verbatim. I recommend reading the actual statutes, since the synopses are necessarily brief and lack many details. I’ll be glad to send a complete set of the statutes and approved or required forms, by email or on a CD-ROM, upon request to me .(JavaScript must be enabled to view this email address) or The Law Offices of Nye and Associates, Ltd., 200 North Dearborn, Suite 1207,Chicago, IL 60601.

 The Living Will Act

In the Living Will Act (LWA), the Illinois Legislature determined that persons have the fundamental right to control decisions relating to their own medical care, including the withholding or withdrawal of death delaying procedures in instances of a terminal condition. Briefly, the LWA permits a person to sign a declaration (the Living Will) that if the declarant becomes terminally ill and is unable to communicate his or her wishes, medical procedures or interventions may not be employed which would serve only to postpone the moment of death. It applies only when the patient’s condition is terminal. It does not affect the responsibility of the health care provider to provide treatment for the patient’s comfort, care or alleviation of pain. It is up to the patient to notify his or her physician of the Living Will and determine whether the physician is willing to carry out the directive. If so, the declaration must be added to the person’s medical record and produced under relevant conditions. If not, the patient’s care must be transferred to a physician who is willing to abide by the patient’s directive.

 Procedure: The Living Will declaration must be written, signed by the declarant, or another at his or her direction, and witnessed by two adults. It may be revoked at any time, whether or not the patient is competent, in writing, orally in the presence of two witnesses, or by deliberate destruction of the declaration. Violation of the Living Will Act may result in civil and criminal penalties, as well as license discipline.

 Exceptions: Nutrition and hydration may not be withheld or withdrawn if doing so would result in death solely from dehydration or starvation rather than from the existing terminal condition. The Living Will of a pregnant patient may not be given force and effect as long as – in the opinion of the attending physician – it is possible that the fetus could develop to the point of live birth with the continued application of death delaying procedures.

 Illinois Durable Power of Attorney Law

Recognizing the limitations of the LWA, the legislature enacted the Durable Power of Attorney Law effective in 1987. The law recognized and declared the right of an individual (the principal) to create an agency – called a Power of Attorney (POA) – appointing an agent to deal with property or make personal and health care decisions on the principal’s behalf during his or her lifetime, including during periods of disability, and to be sure that third parties will honor the agent’s authority at all times. Unlike the Living Will Act, the Durable Power of Attorney Law does not prohibit withholding or withdrawal of nutrition or hydration, nor address issues related to pregnancy.

 The Durable Power of Attorney for Health Care permits an individual todirect his or her health care, including the maintenance or withdrawal of life-sustaining interventions

– including nutrition and hydration

– and to name an agent whose responsibility is to carry out the principal’s directions.

 Procedure: Any suitable form may be used for health care. The statutory form must be used for property. A principal may have one or both and may appoint the same or different agents for property and health care.

 The POA specifies the event or time when the agency begins and terminates, the mode of revocation or amendment, and the rights, powers, duties, limitations, immunities and other terms applicable to the agent and to all persons dealing with the agent. It may be revoked at any time, whether or not the patient is competent, in writing, orally in the presence of two witnesses, or by deliberate destruction of the declaration. The person designated as agent is not obligated to assume the agency; upon accepting the agency, the agent must follow its mandates.

 Unless the POA states another termination date, it continues until the death of the principal and afterward, notwithstanding appointment of a guardian for the principal after the agency is signed. The POA may be amended or revoked by the principal at any time and in any manner communicated to the agent or to any other person related to the subject matter of the agency. If a spouse has been designated the agent and a judgment of divorce or legal separation is later entered, the agency ceases to exist.

 The principal’s attending physician or health care provider may not act as agent under a health care POA.

 Agency - court relationship: If the principal lacks the capacity to control or revoke the agency, any interested person (including the agent) may apply to the court for assistance. The court may interpret the agency and instruct the agent, but the court If the court finds that the agent is not acting for the benefit of the principal according to the terms of the agency, or that the agent’s action or inaction has caused or threatens substantial harm to the principal’s person or property in a manner not authorized or intended by the principal, the court may order a guardian of the principal’s person or estate to exercise any powers of the principal under the agency, including the power to revoke the may not amend the agency.

 If the court finds that the agent is not acting for the benefit of the principal according to the terms of the agency, or that the agent’s action or inaction has caused or threatens substantial harm to the principal’s person or property in a manner not authorized or intended by the principal, the court may order a guardian of the principal’s person or estate to exercise any powers of the principal under the agency, including the power to revoke the agency, or may enter other orders without appointment of a guardian to provide for the best interests of the principal.

 Powers of a guardian when a POA is in effect: Absent court order directing a guardian to exercise powers of the principal under the agency, a guardian will have no power, duty or liability with respect to any property, personal or health care matters covered by the agency.

 Mental Health Treatment Preferences Declaration Act

This statute enables an individual to direct his or her treatment in the event of disability and the need for mental health treatment: ECT, psychotropic medication, inpatient care for up to 17 days.

 Procedure: Person may make a declaration appointing an attorney in fact (this is the same as an agent) to make mental health care decisions in accordance with the directives set out in the declaration. The declaration must be substantially in the form set out in the Act. It must be in writing, signed by the declarant (principal) and witnessed by two persons who are not related to the declarant and may not be his or her mental health provider. It expires in three years unless previously revoked.

The physician must follow the mandates of the declaration except in life-threatening emergencies or unless a court order is obtained to the contrary. The Act does not preclude commitment under the Mental Health Code.

 The attorney in fact may not be the treating physician or the owner, operator or employee of a health care facility in which the principal is a patient or resident.

 The attorney in fact must accept the position in writing, and he or she may withdraw from it by giving notice to the physician.

 Revocation: Declarant must not be incapable; must be in writing and delivered to the physician.

 The Health Care Surrogate Act Application: only where a patient has a qualifying condition and has no active and unrevoked Living Will, Durable Power of Attorney for Health Care, or declaration for mental health treatment under the Mental Health Treatment Preferences Declaration Act. Health care facilities are required to maintain any advance directives proffered by the patient or other authorized person in the patient’s medical records for the duration of the patient’s stay. The Act does not supersede the provisionsof 45 C.F.R. 1340.15 concerning the provision of “appropriate” nutrition, hydration, and medication for neonates.

 Permanent unconsciousness: highly unlikely to improve; thought, sensation, purposeful action, social interaction, and awareness of self and environment are absent; life sustaining treatment, provides only minimal medical benefit.

 Incurable or irreversible condition: no reasonable prospect of cure or recovery; will ultimately cause the patient’s death even if life-sustaining treatment is initiated or continued; imposes severe pain or other inhumane burden on the patient; life sustaining treatment provides only minimal medical benefit.

 Procedure: If a patient is an adult with decisional capacity, then the right to refuse medical treatment or life-sustaining treatment does not require the presence of a qualifying condition. He or she may refuse life sustaining treatment.  

 Qualifying conditions: Terminal condition – illness or injury for which there is no reasonable prospect of cure or recovery; death is imminent, and the application of life-sustaining treatment would only prolong the dying process.

 If the patient is without decisional capacity, the Act requires a qualifying condition certified in the chart by the attending and one additional physician, a surrogate may make decisions. He or she must first try to determine what the patient would have wanted, and apply that decision. If it is impossible to determine the patient’s wishes, the surrogate must make decisions in the patient’s best interests.

 If no surrogate is available, a court appointed guardian makes the decisions.

 The surrogate communicates to the attending physician and one other person the decision to forego life sustaining treatment. Discussions and decisions must be documented. The physician must promptly implement the decision. The Act provides for organ donation.

 Surrogates – priority is as follows: the patient’s guardian of the person; spouse; an adult son or daughter; a parent; an adult brother or sister, grandchild, close friend; the patient’s guardian of the estate.

 If the persons in a category cannot agree, a vote is taken and the majority rules, unless the minority applies to a court for the appointment of a guardian for the patient.

Posted on 05/01/05 at 01:22 PM (0) Comments

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