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What You Need To Know About Living Wills And Powers Of Attorney For Healthcare


March 25, 2005

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3 minutes


Article originally Published in March of 2005.

The notoriety of Terri Schiavo's medical treatment has generated renewed interest in the use of living wills and powers of attorney for health care (these documents are sometimes generically referred to as "advance directives"). Over the last several days, we have received many calls regarding the use of advance directives. The following comments reflect Illinois law in this area.

A living will is a written declaration instructing a person's physician (or an attending physician) to withhold or withdraw death-delaying procedures in the event of a terminal condition. A living will is recognized by law as an authorization, by a terminally ill person, to discontinue medical procedures. This would include withdrawal of a feeding tube, but only if the person were terminally ill. Illinois has a Living Will Act and a prescribed form (which is referred to as a "Declaration"). The use of the sample Declaration included in the Living Will Act is not the sole manner in which to make a living will, but the use of the sample form allows a physician to follow the instructions in the Declaration and protects the physician if he or she acts pursuant to the Declaration. The Illinois Living Will Act also imposes penalties for failure to follow a patient's written Declaration.

Illinois also has a Power of Attorney for Health Care Law, which allows a person (the "Principal") to designate someone as his or her "Agent" to make health care decisions in the event that the Principal is unable to make the decisions due to disability. Illinois has published a pre-approved form, which is often referred to the "Statutory Short Form Power of Attorney for Health Care." Through that form, the Principal may designate an Agent who will be authorized to make health care decisions either effective upon the Principal's disability or at a specified date or event. The Agent, acting under a Statutory Short Form Power of Attorney for Health Care, will have the authority to withhold life-sustaining measures or to continue food and fluids or life-sustaining treatment, unless the Agent's power is expressly limited in the document.

In Illinois, a power of attorney for health care is much broader in scope than a living will, since a living will only applies in the context of a patient's terminal illness. The power of attorney for health care also takes precedence over the living will, as long as the Agent named in the power of attorney is available to deal with the subject of life-sustaining or death delaying procedures.

Terri Schiavo's circumstances highlight the importance of executing powers of attorney for healthcare. Through a properly drafted and executed power of attorney for health care, you can clearly designate the person to be charged with the responsibility of making medical decisions on your behalf in the event of your disability. A power of attorney for health care can also be used as a means of expressing your intent regarding the provision, withdrawal or withholding of life-sustaining medical treatment.


If you would like further information about a living will, please contact your Levenfeld Pearlstein attorney.

Filed under: Trusts & Estates

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