In preparing estate plans, attorneys often include only health care and property powers of attorney, without considering whether those instruments are the only and most effective health care agency documents their clients need. Other less well-known health care agency documents are available, but often not considered during the estate planning process, due to the broad and overlapping scope of powers of attorney. Admittedly, powers of attorney will often suffice for clients’ potential health care agency issues that may arise after the estate planning process is complete. However, powers of attorney will not always be the sole or most effective health care agency documents clients need or desire. In light of this, consideration should be given to the use of all available health care agency documents during the estate planning process, to create estate plans that best meet the needs and desires of the clients. Accordingly, the purpose of this article is to explain the scope of, and interaction among, Illinois’ statutes relating to health care directives and agencies, and to discuss the necessity (or lack thereof) for each type of directive or agency. The statutes in the field of play are: (1) the Living Will Act, (2) the Health Care Surrogate Act, (3) the Mental Health Treatment Preference Declaration Act (the “Mental Health Treatment Act”), and (4) Articles II (Durable Powers of Attorney) and IV (Powers of Attorney for Health Care) of the Illinois Power of Attorney Act.
The purpose of the Health Care Surrogate Act is to establish a process for private decision-making concerning life-sustaining treatment for patients lacking decisional capacity, and who do not have a valid written health care directive. The Health Care Surrogate Act applies when:
(1) the patient lacks decisional capacity or has a “qualifying condition,” and
(2)(a) the patient does not have an effective living will, declaration for mental health treatment, or a power of attorney for health care, or
(b) if the patient has a valid living will, declaration for mental health treatment, or power of attorney for health care, the patient’s condition does not fall within the scope of any of those instruments.
If both of those elements are satisfied, then a hierarchy of priority is created for those persons who have decision-making authority on behalf of the patient.
Under this law, a person may also execute a written do-not-resuscitate directive. That document may also be executed by an attending physician. Consent for this directive may be obtained from the individual, from another person at the individual’s direction, or from the individual’s legal guardian, agent under a power of attorney for health care, or surrogate decision maker. Additionally, a witness 18 years or older must attest that the person executing the directive has had an opportunity to read and sign the form.
Under the Living Will Act, individuals can memorialize their wishes concerning life-sustaining treatment before they develop a terminal condition and lack the capacity to make such a decision. The Living Will Act governs the withholding or withdrawal of “death delaying procedures in the event of a terminable condition.” A “terminable condition” is defined as an incurable and irreversible condition, which is such that death is imminent and the application of death delaying procedures serves only to prolong the dying process. Importantly, in order for a living will to be effective, it must be signed by the declarant and witnessed by 2 people who are eighteen or older. The Living Will Act prescribes a form for use, though use of the form is discretionary.
As a general principle, competent adults have the right to refuse any type of medical care, including self-sustaining treatment. This right has been recognized under constitutional right-to-privacy principles, Illinois common law, and the Illinois Probate Act, and is deeply ingrained in common law principles of individual autonomy, self-determination, and informed consent.
The Mental Health Treatment Preference Declaration Act governs written declarations of preferences or instructions regarding “mental health treatment.” “Mental health treatment” is defined as “electroconvulsive treatment, treatment of mental illness with psychotropic medication, and admission to and retention in a mental health facility for 17 days or less for care or treatment of mental illness.”
Importantly, a valid mental health treatment declaration is effective for only three years. The declaration must be signed by the principal and 2 adult witnesses who must attest that the principal signed the declaration in their presence and appears to be of sound mind and not under duress, fraud or undue influence. However, certain people are prohibited from witnessing the execution of the declaration:
- The attending physician or mental health service provider, or a relative of the physician or provider;
- An owner, operator, or relative of an owner or operator, of a health care facility in which the principal is a patient or resident; and
- Any person related to the principal by blood, marriage, or adoption.
The declaration may be invoked, and the attorney-in-fact has authority to make decisions on behalf of the principal, only when the principal is found “incapable.” “Incapable” means that, in the opinion of 2 physicians or the court, a person’s ability to receive and evaluate information effectively or communicate decisions is impaired to such extent that the person currently lacks the capacity to make mental health treatment decisions. (The Illinois General Assembly has, unfortunately, not been consistent with regard to requirements for these types of determinations. Although two physicians are required for an “incapable” determination under the Mental Health Treatment Act, only one physician is required to make an “incapacity” determination under the Illinois Power of Attorney Act.) The attorney-in-fact must accept the appointment in writing to make decisions on behalf of the principal. The statute prescribes a form for the declaration, and any such declaration must be substantially in the form prescribed.
Finally, the subject matter of the Power of Attorney for Health Care Law, 755 ILCS 45/4 et seq., is broad. Under this law, health care powers that may be delegated to an agent include, without limitation, all powers an individual may have to be informed about and consent to, or refuse or withdraw, any type of health care for the individual, and all powers a parent may have to control or consent to health care for a minor child. Health care agency powers may also extend beyond the life of the principal to include anatomical gifts, autopsies or the disposition of remains.
There are important limitations on who can witness the signing of a health care agency. The following persons are not permitted to serve as witnesses:
- The attending physician or mental health service provider of the principal, or any relative of the physician or provider;
- Any owner, operator, or relative or an owner or operator, of a health care facility in which the principal is a patient or resident (including directors and officers of a corporate entity that is an operator, but not the entity’s employees);
- A parent, sibling, or descendant, or the spouse of a parent, sibling, or descendant, of either the principal or any agent or successor agent, regardless of whether the relationship is by blood, marriage, or adoption; and
- An agent or successor agent for health care.
Importantly, the scope of a durable power of attorney for health care may encompass the subject matter of the Living Will Act and the Mental Health Treatment Act. If the patient has a valid Durable Power of Attorney for Health Care (“DPHC”), that instrument will govern all health care decisions made on behalf of the principal, assuming an agent named in the instrument is available and able to exercise the agent’s duties. However, if no agent in the DPHC is available, or the DPHC either does not authorize the agent to deal with the subject of life-sustaining or death-delaying procedures or expressly prohibits the agent from dealing with those subjects, then the valid living will controls.
With regard to mental health treatment, although not expressly stated under the DPHC Act, a DPHC will govern all decisions concerning the principal’s mental health treatment unless no agent under the DPHC is available, or the DPHC does not authorize the agent to deal with the subject of mental health treatment, or expressly prohibits the agent from dealing with that subject. Indeed, under the DPHC Act, “health care” is broadly defined to include “any care, treatment, service or procedure to maintain, diagnose, treat or provide for the patient’s physical or mental health or personal care.” Moreover, the statutory form for a DPHC is “intended to be as broad as possible” and authorizes the agent (1) to make health care decisions, including the power to require, consent to, or withdraw treatment for any “mental condition, and to admit [or] discharge [the principal] from any hospital, home, or other institution”; (2) to make “any and all decisions [concerning the principal’s] personal care, medical treatment, hospitalization and health care”; and (3) to limit the agent’s power, including directions concerning “electro-convulsive therapy” and “voluntary admission to a mental institution.” Further, the statutory health care power includes the power to consent, authorize, or refuse “all types of medical care, treatment or procedures relating to the physical or mental health of the principal, including any medication program, to admit or discharge the principal from any and all types of hospitals, institutions, homes, residential or nursing facilities, treatment centers and other health care institutions providing personal care or treatment for any type of physical or mental condition, and to contract for any and all types of health care services and facilities in the name of and on behalf of the principal.” Thus, if a valid DPHC covers the subjects of life-sustaining treatment and mental health treatment, and the agent under the DPHC is available, then the DPHC will trump any living will or mental health declaration.
If, however, a person does not have any valid written health care directive (i.e., the principal does not have a valid DPHC, living will, or mental health treatment declaration), the Health Care Surrogate Act will govern. In other words, the Health Care Surrogate Act sets the “default” rules for who is able to make health care decisions on behalf of the principal in the event no valid health care directive exists or the agent under a DPHC is not available (much like the default rules for distribution of property for intestate estates under 755 ILCS 5/2-1).
Given that a DPHC may encompass the subject of the Living Will Act and Mental Health Treatment Act, is a living will or mental health declaration even necessary? With regard to mental health declarations, the general public is presumably less familiar with the narrow subject matter of the Mental Health Treatment Act, and the need or desire for such a declaration on such narrow subjects is likely much less than a DPHC or living will. At first blush, the average person may very well only have vague notions of what electroconvulsive therapy and psychotropic medication are.
However, as of the late 1990s, the U.S. government estimated that about 1 out of every 5 persons is affected by mental illness each year. Other studies suggest that one-half of the adult population will at some point suffer from a mental illness during their lifetime. Whether those mental illnesses fall within the scope of a mental health declaration or not, the relative increase in mental illnesses in the general population warrants attorneys advising their clients to at least consider executing a mental health declaration.
Moreover, even if the client’s DPHC governs life-sustaining and mental health treatment, the possibility exists that the named agents may not be “available” when a decision concerning the client’s health care needs to be made. To further complicate the issue, there is no case law discussing when a health care agent is not “available” under 755 ILCS 45/4-11. Is the agent not available if he or she cannot be reached in person? Is the agent not available if he or she cannot be reached by phone? Must the agent be incapacitated to not be available? This determination will in all likelihood turn on the facts of each case; but, in some instances, there will not be any time to engage in this analysis because a decision on behalf of the client will be required immediately. Thus, in the case of the unavailable DPHC agent, a living will and/or mental health declaration will fill in the gap and provide direction regarding the client’s desires for his or her health care treatment.
In light of these potential scenarios, prudent estate planning calls for attorneys to advise their clients of the interaction and hierarchy among Illinois’ health care agency laws. Advising clients of this information will allow them to make an informed decision as to whether they should execute some or all of the available types of health care directives. Most importantly, these discussions will provide certainty and clarity regarding the clients’ intent if they later lack decision-making capacity and their loved ones and/or medical personnel ultimately need to rely upon the health care agency documents that have been drafted.
 755 ILCS 30/1 et seq.
 755 ILCS 40/1 et seq.
 755 ILCS 43/1 et seq.
 755 ILCS 45/2 and 45/4.
 See 755 ILCS 40/25(a).
 Ficke v. Evangelical Health Sys., 285 Ill. App. 3d 886, 889-90, 674 N.E.2d 888, 890 (1st Dist. 1996) (citing 755 ILCS 35/3).
 Ficke, 285 Ill. App. 3d at 889, 674 N.E.2d at 889.
 Id. at 889-90, 674 N.E.2d at 890-91.
 See 755 ILCS 43/10(2).
 755 ILCS 43/25, 43/30(1).
 Compare 755 ILCS 43/5(5) with 755 ILCS 45/2-3(c-5).
 See 755 ILCS 43/15, 43/75.
 755 ILCS 45/4-3; 755 ILCS 45/4-10(c).
 In re Estate of Greenspan, 137 Ill. 2d 1, 19, 558 N.E.2d 1194, 1202-03 (1990); In re Longeway, 133 Ill. 2d 33, 41, 549 N.E.2d 292, 296 (1989).
 755 ILCS 45/4-11; Greenspan, 137 Ill. 2d at 19-20, 558 N.E.2d at 1202-03.
 755 ILCS 45/4-4 (emphasis added).
 755 ILCS 45/4-10(b) (emphasis added).
 755 ILCS 45/4-10(c)(1)-(3).
Derek M. Johnson is an associate attorney at the law firm of Rathje & Woodward, LLC in Wheaton. Derek practices in the areas of commercial and construction litigation, trust and estate planning and administration, corporate organization and transactions, homeowners’ association law, appellate law, and landlord/tenant law. Derek earned his Bachelors of Science (with Distinction) from the University of Wisconsin-Madison in 2002, and his Juris Doctorate (with Honors) from the Chicago-Kent College of Law in 2007.