A living will in Illinois is a type of advance directive. It allows you to advise an attending health care provider of your wishes about receiving life-sustaining treatment if you have a terminal medical condition and you lack the capacity to decide. If you execute a valid living will, your health care provider must abide by your decisions.
A living will tells your doctor at what point in time you no longer wish to receive treatment that only prolongs your life. Living wills need to be carefully drafted with a complete understanding of how the law works and can be modified to suit individual preferences.
At Plan Forward Legal, our Chicago estate planning attorney prepares living wills for estate planning clients as part of a comprehensive estate plan, so they are prepared in the event of an unexpected injury or illness that renders them unable to act or make decisions for themselves.
- What a Living Will Can and Cannot Do
- How to Execute a Valid Living Will
- The Illinois Living Will Act
- Other Advance Directives in Illinois
- Why You Need Both a Living Will and a Health Care Power of Attorney
- Creating Your Estate Plan Really Does Ease Your Mind
What a Living Will Can and Cannot Do
Living wills enable a terminal patient to refuse medical treatment that is given solely to prevent death from the terminal condition. If a patient also wishes to have sustenance (nourishment) withheld, a living will by itself may not be effective to persuade health care providers to withhold nourishment.
Patients typically direct that if their doctor diagnoses a terminal condition and their death is imminent, all death-delaying interventions should be withheld or withdrawn. They further declare that they be allowed to die naturally with only medications, sustenance, and comfort care provided.
Voluntarily Stopping Eating and Drinking (VSED)
In Cruzan v. Director, the United States Supreme Court established the right of all individuals to refuse medical treatment, including life-sustaining nutrition and hydration. However, when a person is not competent to make their own decisions, the court held that there must be ‘clear and convincing’ evidence of the person’s desires before nutrition and hydration can be withheld.
A person who wishes to have life-sustaining nutrition and hydration withheld should state their preferences very specifically in both a living will and a health care power of attorney to ensure their wishes are followed.
How to Execute a Valid Living Will
Any individual at least 18 years of age (or emancipated) who is of sound mind may execute a living will. The document must be signed by the person making the declaration or their agent and witnessed by two adults. Notarization is not required but is recommended to validate the document.
Persons who have executed living wills should provide a copy to their doctor and ensure the doctor has no objections to following the directive.
Living wills may be revoked at any time by the creator without regard to the person’s mental or physical condition by:
- Destroying the document
- Revoking the declaration in writing
- Expressing an intention to revoke the declaration
The living will of a person determined to be pregnant will not be given effect if a physician determines that the fetus could develop to the point of live birth with the continuation of death-delaying procedures.
The Illinois Living Will Act
Under the Illinois Living Will Act, Illinoisans have a fundamental right to control the decisions relating to their own medical care, including the decision to have “death delaying procedures withheld or withdrawn in instances of a terminal condition”.
An individual can execute a written declaration (living will) instructing a health care provider of their wishes regarding death-delaying procedures.
Death-delaying procedures are those types of interventions that only serve to postpone death. They may include such procedures as:
- Assisted ventilation
- Intravenous feeding or medication
- Blood transfusions
- Cardiopulmonary resuscitation (CPR)
- Surgery
- Chemotherapy or radiotherapy
- Dialysis
Specific instructions may be included regarding procedures that are wanted or not wanted for particular types of injuries or illnesses.
A terminal condition is an incurable and irreversible medical condition that will result in imminent death without intervention.
Doctors still have a responsibility to provide comfort care and cannot withhold nutrition and hydration if to do so would cause the patient to die from malnutrition and dehydration instead of the terminal condition.
Other Advance Directives in Illinois
In addition to a living will, two other types of advance directives inform a treating physician of a patient’s wishes when they lack the capacity to make those decisions for themselves.
A Declaration for Mental Health Treatment allows a person to indicate in advance their preferences for receiving electroconvulsive treatment, treatment with psychotropic medications, or admission to a health care facility if it is determined they are unable to make those decisions.
A Do Not Resuscitate (DNR) order is an advanced directive that instructs your doctor not to attempt resuscitation if your heart or breathing stops.
Why You Need Both a Living Will and a Health Care Power of Attorney
A living will gives health care providers specific directions regarding life-sustaining treatment only when a person’s death is imminent. For all other types of medical decisions needing to be made for someone who lacks mental capacity, a health care power of attorney authorizes an appointed agent to make decisions in accordance with a patient’s wishes.
If you become incapacitated, a living will is a static document that only indicates your preferences without real-time advocacy. Appointing an agent to make health care decisions for you gives your welfare a voice that can interpret context and make choices in your best interests, moment by moment.
Having both a living will and a health care power of attorney ensures your wishes are known and you have a legal representative to carry them out.
Click this link for more information about the different types of powers of attorney.
Creating Your Estate Plan Really Does Ease Your Mind
Have you ever heard of the Zeigarnik Effect? Unfinished business nags at us. Our minds want to complete tasks we know need to be done. When we don’t get things done, our unfinished business hijacks our focus, leaving us feeling scattered. However, once we complete that nagging task, our relieved brain releases dopamine, rewarding us, and we feel like YEAH!
Scheduling an estate planning consultation with Plan Forward Legal will help you get to the finish line so you can enjoy the relief and satisfaction of knowing you’ve taken care of yourself and your family.
