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Advance Directives
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Advance Directives

General Overview
The Living Will
Statutory Power of Attorney for Heathcare
Statutory Power of Attorney for Property

 


Generally

In the past 25 years it has become clear, through many court decisions across the country, that an individual has the right to determine their own health care, to make decisions on issues of medical care at the end of life. It is certainly true that a competent individual has the right to select any of many different methods of health care for themselves, ranging from the most advanced medical techniques, through alternative health care methods like chiropractic, osteopathy and homeopathic, and even to refuse medical care and rely on prayer or deep seated beliefs. It is equally clear, however, that once an individual becomes unable to express themselves, either through illness or injury, that right becomes either unusable or, because of a resort to litigation, very expensive. Accordingly the legislatures of many states have created socalled “Advance Directives” which allow a competent individual to make decisions today which will be honored in the future when those individuals may no longer be able to make or express decisions on their own. These Advance Directives are peculiar to the state in which they have been created. I am an attorney licensed to practice law in Illinois, and the balance of this discussion, and the forms here provided, are peculiar to Illinois law and Illinois residents. Residents of other states should inquire about the laws of their states and make no reliance on this discussion or the forms provided. Advance Directives are part of a properly prepared Estate Plan. They should be used in conjunction with Wills and Trusts. The Law Office of G. John Marmet is available to discuss your estate plans and to prepare documents that are appropriate. Legal services are provided by Mr. Marmet for Illinois residents in several areas, as described on the home page. Mr. Marmet is pleased to consult with you on Estate Plans, wills and trusts, and probate matters at his regular hourly rate.


Living Will

The Living Will was created by the Illinois legislature to permit an individual to limit the type of health care administered at the end of life. The user wants to prevent further medical treatment where a cure or recovery was not possible, and the only reason to continue medical care was simply to put off death, even though death was immenient and inevitable.

The document was (and is) designed to be prepared and signed in the presence of uninterested witnesses, then simply given to your physician for his or her reference and instruction when the conditions in the Living Will were met.

The document must be signed by a competent adult in the presence of competent adults, none of which witnesses would benefit from the death of the person whose Living Will this is.

A Living Will is only applied when the creator of the document (the declarant) is suffering from an incurable or irreversible injury, disease or illness judged to be terminal. Further death must be imminent, except for death delaying procedures. In this event the declarant directs that procedures which only delay or prolong the dying process be withheld or withdrawn.

The declarant’s wish is to die naturally with only the administration of medication, sustenance (food and water), or medical procedures which his or her attending physician believes are necessary for comfort care.

Click here for The Living Will form
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Statutory Power of Attorney for Health Care

The Statutory Power of Attorney for Health Care was created by the Illinois legislature to permit an individual to make advance decisions about health care and, in fact, any care of his or her body, that will be effective even after the individual had become incompetent or unable to make appropriate decisions.

Readers should understand that this discussion only applies to Illinois residents and no attempt is here made to describe whether or not this document is effective or advisable in any other state. Residents of other states should consult with their attorney.

Using the Statutory Power of Attorney for Health Care, an individual can make decisions about the end of life, about their funeral arrangements, about the type of health care given them during their lifetimes (even though death may not be imminent), about whether they should have their hair done regularly, whether any of their organs should be taken and donated after their death, or whether an autopsy should be performed.

Because of the variety of decisions to be made, the Statutory Power of Attorney for Health Care requires the individual (called the Principal) to name a person (called the Agent) to make the health care decisions the Principal would have made, if he or she remained able to make them. As long as the Principal remains able to make decisions, his or her wishes are followed. But when the Principal is no longer able to make decisions, his or her Agent is listened to.

Obviously it is very important to select an individual as your Agent who you can trust to make the decisions you would have made, if you were able to make them. It is equally important that you explain to this individual how you would want decisions to be made. Your Agent should understand that they are not being asked to make decisions about your health care, to decide whether you should live or die, but rather to make the decisions you would have made if you were able to do so. Your Agent cannot be your health care provider, and you cannot select more than one Agent to serve at a time.

The document, which is available in many stationery stores, from the Illinois Department on Aging or which can be printed out from this site, following, should be read very carefully before filling out as there are many decisions that the Principal must make while filling it out. Those decisions include (in the order shown in the form):

  1. the name of your Agent, the person who you have selected to make these health care decisions for you. You should fill in your name and address as Principal, then your Agents name and address in the spaces provided.

  2. whether or not the Principal wishes to donate any organs. A person wanting to donate organs should initial the space next to the decision they want to make, whether to donate all organs, or to donate only specific organs. If specific organs are to be donated, those organs must be listed.

  3. whether any special medical treatment should be required or avoided (persons of certain religions may wish to avoid blood transfusions or medical treatment at all), or whether special funeral arrangements should be made. You can also specifically describe any end of life decisions you may wish made, or

  4. you can determine which of three prewritten end of life decisions you wish to make. You should read the three options carefully and initial the ones you wish to have used.

  5. you can have the power of attorney become effective on a certain date or expire on a certain date, as, for example you may wish to have one child of yours be your Agent now, but you wish a younger child to become agent when he turns 21 years of age. In this case you would give the older child a power of attorney that expires when the younger child becomes 21 and give the younger child a second power of attorney which becomes effective only when he turns 21.

  6. you can select alternate, sucessor, Agents who will serve in the event that you primary Agent is unwilling or unable to serve. You cannot compel an Agent to make these decisions for you, and it is a good idea to have one or two alternates selected.

The doucument, when it is completed, must be signed in the presence of a witness, who must also sign the power and put in his or her address.

The document also notes that you understand what you are doing, and that you would select the Agent named in this power to be your Guardian of the Person, should that ever be necessary.

Space is provided for your Agent (and any successors) to sign the Power. You are asked to sign below your Agent to show that you know that to be the signature of your Agent. Absence of these signatures does not render the document useless. These signatures are only provided so that someone viewing your Agent’s signature can see what you believed his or her signature looked like.

You may wish to consult an attorney about this document if you have any questions. However, the Illinois Legislature has provided much explanatory material in the power, or in further explanatory material. In the doucment you can access below, all of the material offerred by the Illinois Legislature as part of the Statutory Power of Attorney for Health Care is provided.

Click here for The Statutory Power of Attorney for Health Care form
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Statutory Power of Attorney for Property

The Statutory Power of Attorney for Property was created by the Illinois legislature to permit an individual to name another to act for him or her with respect to their property, without the necessity of going to court to obtain Guardianship, that would be effective even after the individual had become incompetent or unable to make appropriate decisions.

Readers should understand that this discussion only applies to Illinois residents and no attempt is here made to describe whether or not this document is effective or advisable in any other state. Residents of other states should consult with their attorney.

Using the Statutory Power of Attorney for Property, an individual can make name an individual to make decisions about all or any part of their property, including bank accounts, real estate, tax matters, pensions, etc. Obviously a great deal of power can be conveyed with this document, and great care should be exercised in selecting the individual to use it.

In fact, individuals of means should consider whether a simple Statutory Power of Attorney is appropriate for the. It is very likely that a Intervivos Revocable Trust, a so-called Living Trust (not to be confused with the Living Will discussed on this site) should be drafted. These documents can be drafted by your attorney at a price much greater than the simple Powers of Attorney, but may, in the end, be much more useful to you.

Because of the variety of decisions to be made, the Statutory Power of Attorney for Property requires the individual (called the Principal) to name a person (called the Agent) to make the property decisions the Principal would have made, if he or she remained able to make them. As long as the Principal remains able to make decisions, his or her wishes are followed. But when the Principal is no longer able to make decisions, his or her Agent is listened to. However, the nature of this Power is such that an Agent may have apparent power to do things and will be permitted to do those things without consulting the Principal. Therefore great care must be made in selecting the Agent.

Obviously it is very important to select an individual as your Agent who you can trust to make the decisions you would have made, if you were able to make them. It is equally important that you explain to this individual how you would want decisions to be made.

You can even tailor the type of decisions to be made, selecting only certain powers to be used, for example, a husband and wife may use this power in the event they are selling their home, but only one of the two are going to be at the closing. In this event, the individual would strike all the powers not necessary to the closing.

The document, which is available in many stationery stores, from the Illinois Department on Aging or which can be printed out from this site, following, should be read very carefully before filling out as there are many decisions that the Principal must make while filling it out. Those decisions include (in the order shown in the form):

  1. the name of your Agent, the person who you have selected to make these property decisions for you. You should fill in your name and address as Principal, then your Agents name and address in the spaces provided.

  2. what specific types of property powers you wish the power to cover. 15 specific types of property transactions are listed from Real Estate transactions, to Estate transactions. These are all explained in the official language of the power (shown in the form provided on this site).

  3. whether you wish any limitations to apply to any of the powers described. For example you might wish to limit the real estate power only to a specific piece of property.

  4. whether you wish to expand on any of the powers described. For example, an agent cannot give away any of your property with this power of attorney. However, if you wish to make sure that certain property be given to your living trust you can say that and specifically identify the living trust by name and date. Or you might wish to continue to make a certain charitable contribution annually. While it may not be advisable to diminish your estate after you have become incompetent, since these are the only assets you own to provide for your care, you may have modest desires that will not conflict with your care.

  5. you can have the power of attorney become effective on a certain date or expire on a certain date, as, for example you may wish to have one child of yours be your Agent now, but you wish a younger child to become agent when he turns 21 years of age. In this case you would give the older child a power of attorney that expires when the younger child becomes 21 and give the younger child a second power of attorney which becomes effective only when he turns 21.

  6. you can select alternate, sucessor, Agents who will serve in the event that you primary Agent is unwilling or unable to serve. You cannot compel an Agent to make these decisions for you, and it is a good idea to have one or two alternates selected.

The doucument, when it is completed, must be signed in the presence of a witness and a notary public, both of which must also sign the power and put in their address (the notary should also imprint his seal). If real estate transactions are to involved, you must also identify the name of the person completing the form for you. If you prepare the form, you should put in your name and address.

The document also notes that you understand what you are doing, and that you would select the Agent named in this power to be your Guardian of the Estate, should that ever be necessary. The job your agent could do for you can be very time consuming and he or she is entitled to reasonable compensation for those services, paying him or herself as necessary. He or she can, further, delegate some of the jobs to others, paying them for their services, like preparing your tax return.

Space is provided for your Agent (and any successors) to sign the Power. You are asked to sign below your Agent to show that you know that to be the signature of your Agent. Absence of these signatures does not render the document useless. These signatures are only provided so that someone viewing your Agent’s signature can see what you believed his or her signature looked like.

You may wish to consult an attorney about this document if you have any questions. However, the Illinois Legislature has provided much explanatory material in the power, or in further explanatory material. In the document you can access below, all of the material offerred by the Illinois Legislature as part of the Statutory Power of Attorney for Property is provided.

Click here for The Statutory Power of Attorney for Property form
PDF file format

Get Adobe Reader to view this file

 

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