HEALTH CARE POWER OF ATTORNEY AND ADVANCED HEALTHCARE DIRECTIVE
Nothing illustrated the heavy emotional burdens on individuals, their families, and their and friends better than Terri Schiavo. We did not know Terri Schiavo. However we feel safe in speculating that she would probably have been horrified to know that she was the center of that controversy, and that she had anything to do with the bitter conflict between her presumably beloved husband and presumably beloved parents.
A Health Care Power of Attorney (“HC-POA”) can prevent at least some of these problems using two important methods. Executed while the individual is competent, the well-drafted HC-POA: 1) is a declaration of the individual's intent in terms of the kind of care the individual would request; and 2) the HC-POA enables another to make health care decisions based on the declaration of intent.
Of course the HC-POA does not lift the emotional burdens of the awful decisions that have to be made. However the declaration of intent removes the element of having to speculate as to the individual's intent, and the power of attorney itself removes the need to resort to a messy, expensive, public, and politically charged series of lawsuits and other insults added to injury.
What is the HC-POA?
The actual HC-POA is a form authorized under Illinois law. As already stated above, the HC-POA is a document that performs two functions: 1) the principal, you, chooses an agent to act on your behalf in the event you are incapacitated or unable to act; and 2) you express your health care preferences. Without an HC-POA one might have to resort to expensive and time consuming court proceedings to perform these two functions.
Why is the HC-POA considered “durable”?
Durability means that the HC-POA remains effective beyond the principal’s incapacity. Under agency law, an agent's power to bind a principal is ineffective or voidable if the agent becomes incompetent. The HC-POA statute makes the HC-POA durable.
What does it mean to “communicate intent”?
Once chosen, an agent may decide broad health care issues including the ability to consent, authorize, refuse, withhold, or withdraw any type of medical care including life-sustaining treatment or even the provision of food and water. The agent may even act beyond death, making anatomical gifts, allowing autopsy, and making specific disposition of the remains. These are difficult decisions. The principal should consider these matters and discuss them thoroughly with the agent, and any specific preferences should be set out in the HC-POA itself. The agent’s decisions may never be easy to make, but a clear communication of intent will make those decisions as easy as possible.
What types of intent should the principal communicate to the agent?
The statutory form provides several methods to communicate intent. The HC-POA form is intended to be the broadest possible grant of authority. After authorizing or not authorizing organ donations, in paragraph 2 the principal is asked to set out any specific limitations to the power, such as not authorizing electro-convulsive shock treatments. Of course this may be left blank if you have no particular objections to any treatment that might be used. We counsel caution in terms of any limitation set out in paragraph 2, as these limitations may be problematic.
Next the principal is asked to select between the following three options:
I do not want my life to be prolonged nor do I want life-sustaining treatment to be provided or continued if my agent believes the burdens of the treatment outweigh the expected benefits. I want my agent to consider the relief of suffering, the expense involved and the quality as well as the possible extension of my life in making decisions concerning life-sustaining treatment. Initialed __________ I want my life to be prolonged and I want life-sustaining treatment to be provided or continued unless I am in a coma which my attending physician believes to be irreversible, in accordance with reasonable medical standards at the time of reference. If and when I have suffered irreversible coma, I want life- sustaining treatment to be withheld or discontinued. Initialed __________ I want my life to be prolonged to the greatest extent possible without regard to my condition, the chances I have for recovery or the cost of the procedures.
The first option is, essentially, that the principal prefers to not be kept alive in a vegetative state, preferring instead that the agent “pull the plug”. The third option expresses the opposite intent that the principal prefers to be kept alive as long as possible. This may be for religious or other reasons. The middle option may seem to be something in between the two extremes. Upon close examination, it is not. In fact we are not quite sure what it means except that the attending physician is being asked to make a judgment that he or she may not be prepared to make. We do not endorse any of the three options, however we are not comfortable with the middle option.
How does an agent create an HC-POA?
HC-POAs can be statutory or non-statutory. Both a statutory and a non-statutory HC-POA must 1) be executed by the principal; 2) designate the agent; and 3) comply with the physician as agent limitations. Principals may not name an attending physician as agent either under the statutory form or a non-statutory HC-POA. An HC-POA must be witnessed, whereas a non-statutory HC-POA needs no witness. Notarization is not required.
The Illinois legislature has provided a statutory form for the HC-POA, but specifically provided that an agent may execute “any other or different form.” The advantage of using the statutory form is that health care providers are familiar with them, and so will normally take them without question. In fact, any health care provider who “fails to comply arbitrarily or without reasonable cause shall be subject to civil liability for any damages resulting from noncompliance.” 755 ILCS 45/2-8.
How to use an HC-POA?
Once executed, the principal or agent should notify the health care provider of the existence of the HC-POA. The health care provider must then, by law, make note of the HC-POA in the principal’s medical records. If the health care provider then determines that the principal lacks informed consent, the health care provider should consult with the agent. The health care provider has the option of either complying with the agent’s decisions, or transferring the care of the principal to another health care provider. The agent may inspect medical records at any time.
How to revoke an HC-POA?
The HC-POA is revocable and you may provide conditions for the HC-POA to either become effective or to automatically terminate in paragraphs 3 and 4. The HC- POA may be revoked by physically destroying or defacing the document in a manner indicating intention to revoke, or by a separate written revocation or an oral or other expression of intent to revoke in the presence of a witness 18 years of age or older who thereafter signs and dates a written confirmation that the principal expressed intent to revoke the HC-POA.
The HC-POA may also be amended by a written document signed and dated by the principal. Unlike other documents, the principal need not be mentally competent to revoke an HC-POA.
While the statutory form does provide that the agent is nominated be the principal's guardian, in the event the principal is not competent, the nomination is of no value unless the principal does not contest the guardianship.
What is difference between an HC-POA and a Living Will?
A Living Will is an “advance directive”. As such it is a pure declaration of intent, intended to guide health care personnel. It is a pure declaration of intent because, unlike the HC-POA, a Living Will does not enable another to act on another’s behalf.
The Living Will statute, 755 ILCS 35/1, was enacted to recognize an individual’s “fundamental right to control the decisions relating to the rendering of their own medical care, including the decision to have death delaying procedures withheld or withdrawn.” The Living Will becomes effective only when the principal is terminal, suffering an incurable and irreversible condition, and then it is used only to direct that death delaying medical procedures not be used only to “prolong the dying process.”
By contrast, the HC-POA extends the agent’s power to act during incapacity, not merely under terminal conditions. The Living Will does not authorize the withdrawal of nutrition and hydration, while this may be achieved under an HC-POA. Other practical decisions may be made by an agent under an HC-POA, such as medical consents, admission to hospitals, and other long-term care facilities. If a principal has both an HC- POA and a Living Will, the Living Will is inoperative as long as there is an agent available to deal with life-sustaining or death delaying procedures. Therefore one may wish to have a Living Will, in addition to an HC-POA, for the possibility that the