Page 19 - John Hundley 2009

Sharp Thinking

No. 25 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. October 2009
Some Statutory Changes Affect Provisions

On Life-or-Death and Other Medical Decisions

By John Hundley, 618-242-0246, Jhundley@lotsharp.com
Some subtle changes have been made in statutes which affect life-or-death
and other medical decisions.
Often misleadingly called “living will” laws, they are designed to provide for
medical personnel to follow the patient’s pre-stated wishes when the patient is
unable to competently express his or her wishes, or to provide for a substitute
decision-maker to make medical decisions for the patient in such situations.
To understand the recent changes, some background is appropriate.

The Background: Guardianship. What medical person-
nel do to one’s body is subject to the patient’s control, and “informed consent”
is an important element of avoiding medical malpractice. Yet, in some of the severest
situations, the patient is unable to communicate his or her directives (e.g., under sedation,
in a coma, etc.), or is unable to make a competent decision (under the influence of drugs
which affect judgment, dementia, severe mental illness, etc.). Under common law the
remedy was to ask a probate court to appoint a guardian. But this often was not a good
situation because the judge usually knew nothing about the patient’s desires or medicine,
and legal procedures often were not as quick as medical reality demanded. The statutes at
issue seek to avoid the disadvantages of the guardianship process.

The “Living Will”. The first of the statutes which attempt to avoid the shortcomings of
the probate process is the Living Will Act (755 ILCS 35). The concept of the “living will” is that the patient
states in writing his or her desires in advance and when that “living will” later is presented to the medical
personnel they are to follow it even though the patient is not then able to express
those wishes (e.g., has had a heart attack, has gone into coma). Adopted in 1983,
this act focuses solely on whether the patient is to receive a “death delaying
procedure” when he or she is in a “terminal condition.” Moreover, its terms are
frozen in the legislative mindset of 1983; thus, by signing the typical “living will” you
tell the hospital to continue giving you “sustenance” – i.e., nutrition and hydration –
even if a tube is required.

The “Health Care Power of Attorney”. The limitations of the Living Will Act led
to adoption of the Health Care Power of Attorney (“HCPA”) Act (755 ILCS 45/4-1 et seq.) in 1987. The
concept of this act is that instead of dictating your desires in advance, you designate someone else as
your agent to make health care decisions for you when you cannot. Moreover, where a Living Will

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Sharp Thinking is an occasional newsletter of The Sharp Law Firm, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp
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