Page 20 - John Hundley 2009

focuses only on “pulling the plug”, this law allows you to delegate to your agent control over “all aspects of
[your] personal care and medical treatment” (or less if you want). The statute (and suggested form) also
permit you to give guidance to your agent as to your preferences on end-of-life issues.

Health Care Surrogates. The HCPA was so well received that in 1991 the legislature
adopted the Health Care Surrogates Act (755 ILCS 40), which provides that when the patient is unable to
competently make or express his or her health care decisions, a “surrogate” is empowered to do so. In
essence, this law gives decision powers – much like those given under the HCPA to agents – to the
patient’s relatives, following a hierarchy as stated in the act. This is “stop gap” legislation – if there is an
applicable Living Will or HCPA, that document will control.

Mental Health Treatment Preference Declarations. These declarations
permit one to state in advance (or when he or she is not under the influence of his or her mental illness)
the individual’s desires on three key mental health treatment issues: psychotropic medications, electro-
convulsive treatment, and admission to a facility for short-term mental health treat-
ment. Like an HCPA, a declaration under this act (755 ILCS 43) appoints an individ-
ual to act as agent, but unlike the HCPA this act requires the agent to act in
conformance with the wishes expressed in the document. Indeed, it appears provid-
ers may rely on such a declaration in their file even if the stated agent does not so
direct. However, for the declaration to apply, two physicians or a court must deter-
mine “that my ability to receive and evaluate information effectively or communicate decisions is impaired
to such an extent that I lack the capacity to refuse or consent to mental health treatment”.

The DNR Order. Under pressure of federal law and with the General Assembly’s con-
sent (20 ILCS 2310/2310-600, 755 ILCS 40/65), the Department of Public Health
has issued a “Do Not Resuscitate” (“DNR”) Advance Directive form which
patients may execute. Under an executed form, health care providers are not to
attempt cardiopulmonary resuscitation (“CPR”) when both breathing and heart-
beat stop, and may or may not (depending on the patient’s instructions) attempt
CPR when the heart is still beating but breathing is labored or stopped. Doctors
also are permitted to enter DNR orders in patients’ records based on advance
consultation with the patient or alternate decision makers. DNR orders address only resuscitation and not
the broader scope of care which may be covered by any of the preceding documents.

The Changes. Effective Jan. 1, 2010, in addition to the documents discussed above,
health care facilities must maintain in their files any “declaration of a potential surrogate or surrogates
should the person become incapacitated” (P.A. 96-448). This conforms that provision to others which
permit substitute decision-makers to submit end-of-life decisions for the patient in advance of the critical
point being reached (755 ILCS 40/65(b)). Recent legislation also omits a limitation that keeping of such
records was required only “for the duration of the patient’s stay” (P.A. 96-492).
Other legislation requires that witnesses to DNR orders attest that the maker of the order (1) had an
opportunity to read it and (2) signed or acknowledged the signature in the witness’ presence. While
increasing those requirements, the amendment permits one witness, rather than two, to suffice (P.A. 96-
765).
John\Sharp Thinking\#25.doc
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