Page 12 - John Hundley 2011

“Permanent unconsciousness” means a condition that, to a high degree of medical certainty, (i)
will last permanently, without improvement, (ii) in which thought, sensation, purposeful action,
social interaction, and awareness of self and environment are absent, and (iii) for which initiating
or continuing life-sustaining treatment, in light of the patient’s medical condition, provides only
minimal medical benefit. For the purposes of this definition, “medical benefit” means a chance
to cure or reverse a condition.

“Terminal condition” means an illness or injury for which there is no reasonable prospect of
cure or recovery, death is imminent, and the application of life-sustaining treatment would only
prolong the dying process.

Those definitions then are applied in one of the revised, optional passages through which the
patient can give his or her agent advice as to near-death decision-making. The revised option reads:

I want my life to be prolonged and I want life-sustaining treatment to be provided or continued,
unless I am, in the opinion of my attending physician, in accordance with reasonable medical
standards at the time of reference, in a state of “permanent unconsciousness” or suffer from an
“incurable or irreversible condition” or “terminal condition”, as those terms are defined in Section
4-4 of the Illinois Power of Attorney Act. If and when I am in any one of these states or
conditions, I want life-sustaining treatment to be withheld or discontinued.

Hence, an HCPA under the amended statute is a far cry from an Illinois
Living Will, which applies only when death is imminent and requires
administration of “sustenance” – nutrition and hydration – even then.

P.A. 96-1195 also makes other desirable changes in this act and in the
statutory form used thereunder. With respect to the form, gone are the days
when it contemplated the entire statute being printed on the back of the
form. Instead, the revised form prescribes an improved set of notices to the
patient within the form itself. Significant new format requirements are imposed
to set off the notices from the operative provisions, and to make them more
readable.

In addition, the revised form contains passages entitling the agent to information to which the
patient is entitled under the Health Insurance Portability & Accountability Act (Pub. L. 104-191, 110
Stat. 2087) (“HIPAA”), and an improved provision with respect to autopsies and disposition of
remains.

The amended statute retains the requirement that the execution thereof be witnessed, but adds
restrictions on who may be witnesses, analogous to those for property powers of attorney (see Sharp
Thinking No. 45, issued earlier this month).

Powers executed under the former law are not invalidated by the amendments, but because of the
improved definitional concepts addressed above, even persons who have an executed HCPA in force
may want to consider executing a new one. Specifically, Option 2 (the revised version of which is
quoted above) previously was worded as applying only when the patient was in an irreversible coma.
If the revised version quoted above is more in keeping with the patient’s real wishes, execution of a
new HCPA would be advisable.
John\SharpThinking\#46.doc

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