Living Wills are a documents that allow you to communicate your wishes concerning death–delaying procedures once you are terminally ill and become incapacitated. They are an important part of an estate plan. The person who makes a Living Will is called a “Declarant.” A Living Will Declaration can include various levels of detail about the kinds of medical procedures that you would like to accept or refuse which may either hasten or delay death. For example, a Living Will provides for what would happen if the Declarant has an incurable or irreversible injury, disease, or illness that is terminal as it related to death-delaying procedures. The Declarant can elect such death-delaying procedures to occur or elect to die naturally with only comfort care. If the Declarant is unable to give directions to doctors or loved ones about how they want their end-of-life care to be administered, the Living Will is considered the final expression of the Declarant’s legal decision.
Because a Living Will Declaration may be limited in its scope or application, it is often better to have a Health Care Power of Attorney in addition to (or even in place of) a Living Will. A Healthcare Power of Attorney allows you to authorize an agent to make health care decisions on your behalf and covers a broader array of issues regarding your healthcare which are not limited to death–delaying procedures. Instead, a Power of Attorney permits your agent to consent or refuse certain medical procedures, allow for an autopsy, or even provide consent to make anatomical gifts.
The person who makes a Health Care Power of Attorney is called a “Principal”. Both of these documents need to be witnessed by two persons who are competent and qualified to act as witnesses. If you choose to draw up a Living Will on your own or use a pre–existing form, you should consider discussing your situation with an experienced and caring attorney who will ensure that you are meeting the requirements of the law. Failure to follow the signature requirements for either Living Will or Health Care Power of Attorney can result in disastrous consequences. Often, the defects in a handwritten or form document are not discovered until after the need arises. At that time, you may be unable to correct the mistake of defect due to your medical condition.
The law in the State of Illinois has recently changed concerning Health Care Powers of Attorney and these changes will be effective in the year 2011. For more information about the benefits and limitations of documents such as Living Wills and Powers of Attorney, as well as other documents relating to medical decisions (such as designations of guardianship and mental health consents), please contact the experienced Wheaton attorney Daniel J. Kollias. We pride ourselves on taking time to fully understand our clients’ circumstances in order to make sure that the estate planning documents prepared truly implement their wishes.