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Why Everyone Needs An Advance Medical Directive

June 2005
John Hayes

It has been impossible to ignore the recent battle over Terri Schiavo's fate. Like many Americans, Ms. Schiavo did not execute an Advance Medical Directive ("AMD"). When her medical condition deteriorated, and because she had left no AMD to effectuate her wishes, the courts had to become involved to determine what steps had to be taken with respect to her care.

The issues present in the Schiavo case are not new. Various courts have previously addressed the issue of an individual's constitutional right to control his or her medical treatment. Almost uniformly, the courts have held that when making end of life decisions, health care professionals must have clear and convincing evidence of a patient's desires. So long as the patient has the ability to express his or her desires, this threshold can easily be met. However, when a patient's health has deteriorated to the extent that his or her mental capacity is in question, or when the patient is incapacitated, then the physician may be forced to rely upon the input of family members, or in worst case, may be forced to seek the guidance of a court.

Most state legislatures have attempted to address the problems inherent in this situation by instituting laws allowing for a surrogate to act for an incapacitated patient. In Illinois, we have the Illinois Health Care Surrogate Act (the "Act"). The Act allows a surrogate to make decisions for an incapacitated patient where no AMD exists. The Act prioritizes who has the authority to make those decisions as follows: (1) legal appointed guardian of the person; (2) spouse; (3) adult son or daughter; (4) mother or father; (5) adult brother or sister; (6) adult grandchild; (7) close friend; or (8) legally appointed guardian of the estate.

The Act only becomes effective when an individual who lacks decisional capacity has not previously executed an AMD. Clearly, as occurred in the Schiavo case, even with a surrogate statute, family members can contest a surrogate's decision. Further, multiple surrogates in the same priority group can disagree about the intentions of the incapacitated patient.

The practical considerations raised by the Act can be avoided if the individual, prior to his or his incapacity, executes an AMD that clearly outlines the individual's desires with respect to his or her health care treatment and appoints another to enforce those desires. Although the names of the AMD differ from state to state, in Illinois the documents include the Living Will and Power of Attorney for Health Care.

A Power of Attorney for Health Care ("POA") appoints an individual to act as a person's agent to ensure that any medical treatment provided is consistent with that individual's desires. The individual who executes the document is called a "principal" and the person appointed to act is the "agent". In addition to outlining the types of medical treatment authorized by the principal, a POA can also be used to reflect the principal's choice of treatment in the event that life sustaining treatment must be utilized to prolong life. Those choices are: (1) the use of life-sustaining treatment to prolong life without regard to the patient's condition, chance of recovery or the cost of the procedure; (2) the use of life-sustaining treatment to prolong life unless or until the patient is in an irreversible coma, in which case life-sustaining treatment should be withheld or discontinued; or (3) the use of life-sustaining treatment to prolong life only if the principal's agent determines that the expected benefits of treatment outweigh the corresponding burdens.

While a POA can be made effective at a future date or upon the happening of an event, it is most often effective upon signing as the need for its use cannot be foreseen.

The Living Will outlines an individual's desire with respect to the type of medical treatment he or she desires to receive. This expression of one's desires, carried out by a surrogate, can assist health care professionals as they attempt to ascertain a patient's desires. This document can address issues such as artificial breathing, food and water, and whether or not any or all of the above should be withheld under certain circumstances. Unlike a POA, no agent is appointed under a Living Will. If both a POA and a Living Will are executed, the POA controls and the agent appointed under it makes decisions on behalf of the incapacitated patient.

Regardless as to whether one agreed with Ms. Schiavo's husband, or with her parents, all would agree that the Schiavo case was a tragedy. With the use of AMDs, similar tragedies can be avoided.

Pedersen & Houpt can provide all manner of assistance with the drafting of estate planning documents, including AMDs. Please contact your Pedersen & Houpt attorney or John Hayes at 312 261 2121 if you need further assistance.

This communication is provided as a general informational service to clients and friends of Pedersen & Houpt. It should not be construed as and does not constitute legal advice on any specific matter, nor does this message create an attorney-client relationship. This material may be considered Attorney Advertising in some states. Please note that any prior results discussed in this material do not guarantee similar outcomes.

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