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Power of Attorney for Health Care

Chicago Estate Planning Law Firm

Chicago Estate Planning

Why Do I Need a Power of Attorney for Health Care?

A durable power of attorney for heath care names an agent who can make medical decisions on your behalf. The Illinois statutory power for health includes several statements of philosophy for you to choose from regarding end-of-life decisions. At one end is a "living will" type of philosophy which says "Don't keep me alive if my agent believes the burdens of the treatment outweigh the expected benefits, including quality of life considerations. Just keep me comfortable." At the other end of the spectrum you can say, "Keep me alive for as long as possible, without regard to my chances for recovery." Also known as a medical directive, a medical power of attorney, and as a health care proxy - the durable health care power of attorney is an excellent starting place for any estate plan, even if you literally have no assets at all. Hopefully, the power will never be used, because you will never be incapacitated, but if you are, they will allow your family to take personal care of you in the manner that you specify, while staying out of court which is always your goal. Your health care power of attorney can be effective immediately; or it can go into effect when you are unable to give intelligent consideration to your health as determined by some person or group of people, such as your attending physician and your agent.

A Power of Attorney for Health Care Let’s YOU Decide

A Power of Attorney for Health Care (POAHC) allows YOU to decide who handles your personal issues instead of the court picking someone. You can give directions to the agents you select, conferring as much authority and limitations as you decide. If and when you become unable to speak for yourself, then your health care agent can:

  • Decide between Treatment A or Treatment B
  • Decide where you live (nursing home or your own home)
  • Decide when it’s too late for heroics

To ensure you have those who you want to make health care decisions on your behalf Contact Our Chicago Estate Planning Attorneys

Activate your instructions regarding organ donation (some good coming from something terrible). Without a POAHC, the “wrong” person is more likely to make personal decisions for you if: You have a longtime partner to whom you are not married and who has no legal status. That includes gays and lesbians in committed relationships in most states.

  • You are married, but separated or otherwise not on good terms with your spouse.
  • You have close relations who love you but don’t know your wishes or are mistaken about your beliefs and philosophies regarding life-and-death issues.
  • Your close relations have vastly different world and religious views, from you or each other.
  • There are persons equally close to you biologically but way different in terms of whom you are actually close with trust or rely upon.
  • You are married, but your children from a previous marriage don’t have a good relationship with your new spouse or have differences with him/her over matters relating to your health care.
  • Your closest biological relationship is with someone you don’t know or are estranged from.
  • You have no close family.

Fact: In some states if you select your spouse as your health care agent and later get divorced, his/her appointment is considered automatically revoked unless it’s renewed after the divorce. The assumption is that you don’t want your ex to be the one empowered to pull your plug or direct some invasive procedure that will merely prolong your agonizing life.

The ideal choice for a POAHC agent is a trusted loved one who understands you, lives nearby, can decipher medical terminology and is willing to fight for your best interests. Reality may put that ideal out of reach. Whether your agent is thousands of miles away or around the block, your spouse or your son’s ex-wife, the main criterion is that the person be available and dependable. In any event, as with all fiduciary selections you make, good drafting involves naming at least one contingent person in case your first agent can’t or doesn’t want to act. Selecting an agent can be a difficult decision, but it’s better to make an imperfect choice than to do nothing and leave it to chance.

Before she died, Terry Schiavo unfortunately became more of a political rallying cry than a real person to all but her close family and support system. As a symbol, multitudes of people lined up on both sides of her issues, with Terry having no say in the matter at all. She is an extreme example, but she was once competent, too.

Keep Me Comfortable and Let Me Die With Dignity

End-of-life decision-making can be complicated by ethical, moral, religious, and legal issues. The typical POAHC form includes different set statements about end-of life philosophies that you can use or modify according to your beliefs and wishes. The philosophy can also be in the form of a separate document, usually called a “Living Will”. Your directions can be general or specific. You can tell your agent to withhold “heroic” measures that will simply prolong your pulse when unable to communicate and:

  • I can no longer recognize my loved ones.
  • I spend most of my time with my head down or a blank look on my face not moving.
  • I am miserable and can no longer fully function as a human being.
  • I’m being kept alive only artificially via feeding tubes or ventilators and my prospects for living without them are low.
  • When my agent believes the burdens of the treatment outweigh the expected benefits, including quality of life, after consulting with my attending physician and at least one other unaffiliated consulting physician.
  • An added instruction may be to “keep me as comfortable as possible, with plenty of medication to numb the pain.
  • ” You might want to bold any special language that might otherwise blend into a standard form. Show your POAHC to your agents and go further by referring your agent and health care professionals to the added language.
  • At another end of the “right-to-life” spectrum, you can request that you be kept alive as long as possible without regard to your condition or chances for improvement. If all your money has to be spent on medical care or nursing homes, so be it.

The Illinois Right to Life Committee Philosophy

The Illinois Right to Life Committee offers one philosophy that appeals to some when considering their POAHC:

"Since it is not possible to foresee the specific circumstances under which someone else may have to make health decisions for me, and since it is not possible to foresee what specific decisions I might make if certain circumstances did occur, I have thought seriously about and confirmed the beliefs and principles on which I base decisions I make for myself. In the following paragraphs I have set down these principles and beliefs as instructions for those who must make decisions for me should I become legally incompetent.

I direct my agent(s) and all those in charge of my medical care to follow these instructions in making health care decisions for me if I am incompetent to make them myself and, where the instructions are not explicit, to honor the spirit of these reflections:

Because human bodily life is inherently good and not merely instrumental to other goods, nothing should be done which will directly cause my death, nor should anything be omitted when such an omission would be the direct and primary cause of my death. Euthanasia, whether by omission or commission, is not permitted. I instruct my agent(s) and my physician to assist me in fulfilling the days of my life until natural death.

I wish to receive medical care and treatment appropriate to my condition, which offer a reasonable hope of benefit without excessive pain, expense or other excessive burden to me, and which do not pose a severe threat to my life.

I direct that medical treatment and care be provided to me to preserve my life without discrimination based on my age, physical or mental disability, or the "quality" of my life.

I wish food and fluids provided to me either orally, intravenously, by tube, or by other means to the full extent necessary to both preserve my life and to prevent death by dehydration and/or starvation, unless death is truly imminent from an underlying fatal disease, or unless I am unable to assimilate foods or fluids.

If I am diagnosed as terminally ill, pain relief and basic nursing care, specifically including food and fluids as noted above, should be provided, as well as ordinary nursing and medical care appropriate to my condition. Although pain relief may be necessary, it should never be intended to cause death by suppression of breathing or terminal sedation.”

There are professional videographers that offer services to the large population of terminally ill Americans. These companies will assist you in making a final parting message to loved ones, including productions to be shown at memorial services. For a young parent enduring the effects of a debilitating and fatal illness, it may be a priceless way to pass loving wisdom to your children. LifeChronicles a Santa Barbara nonprofit.

I Want the Plug Pulled... But Not So Fast!

If you are a legally competent adult, then you have the right to make your own medical decisions. You have the right to decline medical care, including any procedure or treatment that would simply extend your life. A Power of Attorney for Health Care names a person as your agent who can step into your shoes and make medical and other personal decisions on your behalf if you become unable to communicate or are judged incompetent. After you sign a POAHC, you continue to speak for yourself as long as you are able, so even if you are giving immediate authority to your agent, you will be the decider as long as you are competent. A competent principal can rather easily revoke an agent's power.

As you sit here reading this in the prime of life, your own incapacity may seem even more remote and improbable than death, but you don’t know when your world can change suddenly and unexpectedly. You can only sign a POAHC (also “proxy” or “advanced directive”) if you are capable and aware of what you are doing. Hopefully, the POAHC will never be used because you never become unable to effectively communicate, but if an “event” occurs, this key document can save your family tremendous heartache and serve as a guide regarding crucial personal and medical issues.

Even without a POAHC, it’s possible that if you become voiceless, your family, physician and hospital staff will reach a common sense consensus and navigate an acceptable course of action regarding your care without involving a court. The people taking charge might even make the same choices you would, but why leave so much of it to chance? Unique circumstances along with conflicting personalities and philosophies of family members, physicians or nurses can all become factors in what are literally life-and-death matters. With your fate hanging in the balance, the family can be dragged through an extremely painful and expensive process that takes on a life of its own. A judge could end up delegating key decisions over your care to the last person on Earth you would pick. A POAHC gives you some measure of control and piece of mind.

Powers of attorney for health care are inexpensive or free. You can get free ones from hospitals, physicians, concerned organizations and on the internet. After you have executed the POAHC, you should give copies of it to your physicians and others associated with your health care, such as a nursing home or other facility. Ask them to make it a permanent part of your medical file so they know who to call in an emergency. You decide when you want to give copies to your agents, but I usually suggest giving a copy to the primary one.

Brooke Astor

In her prime, New York society queen Grand Dame Brooke Astor was meticulous about grooming. Before she died at the age of 105, her grandson brought an elder abuse lawsuit. The issues presented in open court, including her sleeping in a ripped nightgown on a urine-soaked couch, were published in various media and mirror the types of issues presented before probate courts in various cities and burgs. At the heart of such sad public spectacles is a person who has become incompetent. Of course, it can never happen to you (but it can).

The Patient Self-Determination Act requires hospitals, nursing homes, and other medical institutions that receive federal funding to inform patients of their right to execute a POAHC and/or living will, but there is no law requiring patients to follow through. It’s up to you to decide to get it done.

What is a DNR?

A Do Not Resuscitate (“DNR”) order is a separate document that fits into the end-of-life paperwork puzzle if you are in the throes of a final illness. A DNR must be signed by a physician and is prominently posted where you are living. You also sign it, unless you are incapable of doing so, in which case your agent signs on your behalf, if you have given that authority under your POAHC. If there is no POAHC, your court-appointed guardian is the one who signs for you. DNRs, common in intensive-care wards and hospice settings, are the final word on cessation of life-sustaining treatment, though they can be revoked. A physician will not sign a DNR unless you are already very ill.

People tend to focus on the end of life process when discussing advanced medical directive, but the POAHC also extends over basic treatment and other quality of life issues. Consider:

  • If you have a serious accident, stroke, or other misfortune that leaves you unable to speak — who will be your chief “decider” regarding your care and where you live?
  • If you need to have an unexpected medical decision made during an operation while you’re under anesthesia?

Your agent’s authority can be limited in any fashion you wish, including the listing of medical procedures that you find abhorrent. You may insist on:

  • No electrical or mechanical resuscitation of the heart when it has stopped beating
  • No nasogastric (feeding-tube) feeding when paralyzed or unable to take nourishment by mouth
  • No mechanical respiration when unable to sustain breathing
  • No shock therapy to treat mental illness

True Story

Tony was married to Shirley for 71 years. Shirley had medical problems galore. She could no longer walk; both hearing and vision were failing; she was taking more than a dozen medications for various ailments. She appointed Tony as her POAHC agent. A year later, he called me. Shirley had fallen badly and an ambulance took her to the hospital. While alert, she signed a DNR. In no uncertain terms, she said she no longer wanted to live. After Shirley slipped into a coma, Tony wanted to resuscitate her, citing his authority to direct her care under the POAHC. The hospital correctly refused his direction. Tony lacked authority, because Shirley clearly indicated her wishes while she was lucent. Had she not done that, Tony could have exhausted a range of procedures in trying to bring her back. As it was, he was able to make sure that she was as comfortable and pain-free as possible.

The “Five Wishes” © -offers one organization’s best effort to tackle delicate death-with-dignity issues. It is a POAHC with additional language that may help you express your health care wishes by incorporating medical, personal, spiritual and emotional preferences associated with end-of-life care. Its format encourages discussion about your health care with family and physicians in plain English (also Spanish) and “can be used in the living room instead of the emergency room.” Funded by The Robert Wood Johnson Foundation, the nation’s largest philanthropic organization devoted to health matters, it is legally recognized by at least 40 states.

Effect of HIPAA on Power of Attorney for Health Care in Illinois

The privacy rules of the federal Health Insurance Portability and Accountability Act ("HIPAA") should not interfere with an Agent acting under a properly executed Power of Attorney for Healthcare. Under HIPAA, only the patient or his "personal representative" can access - or grant permission for others to have access to - the patient's private medical records. An Agent under an Illinois Statutory Power of Attorney for Healthcare is, by definition, a "personal representative" under HIPAA.

Despite the reality of the law, overzealous healthcare providers (and their administrative employees you encounter on the "front line") may erroneously refuse access to medical information to an agent under the Power of Attorney, most likely in a misguided attempt to avoid penalties otherwise authorized by HIPAA for wrongful disclosure of private information.

Since late 2003, some lawyers have sought to prevent this type of problem with healthcare providers by adding a clause in the Power of Attorney that specifically grants the health care agent HIPAA authorization. Other lawyers feel that including the language in the Health Care Power of Attorney document creates an internal conflict within the document and may actually result in a "compound authorization" - a no-no under HIPAA. In Illinois, a new statuatory Power of Attorney for Health Care will become law July 1, 2011. The new POAHC form will include HIPAA authoriztion. Stay tuned...

Please note that to the best of my knowledge, no agent of any client of mine to date has been stymied when attempting to use a health care power of attorney without added HIPAA language. At most, this appears to be more of a "what if" problem. I have decided that to address clients' concerns regarding HIPAA, the best solution is to use a stand-alone authorization and keep this authorization with your estate planning documents. It may also be advisable to give the HIPAA to your physician and the people you are giving authorization to.

Final Thoughts

Without the right documents, including a HIPAA authorization and Power of Attorney for Health Care, you or your family can find yourselves part of a maelstrom beyond normal reality. Hopefully you’ll never need to use either document, but the need can arise in an unanticipated existential moment. Then it’s too late.