Choose Your Agent Carefully: Life, Death & Care Instructions

I, (Rick Law) teach a continuing education class for health care professionals entitled “In the Shadow of Schiavo: Life, Death, and Care Instructions.”  Most  attendees come to the class assuming they are going to hear some lawyer drone on about boring legal documents.  But when life and death are on the line, health care advance directives are part of the human drama. 


Very few doctors, nurses, or other health care personnel understand the interplay between the Illinois statutory advanced directives such as the Living Will, Power of Attorney for Health Care, and Do Not Resuscitate Order.  When a person lacks effective advance directives, then a physician can trigger the Illinois Health Care Surrogate Act to create a decision-maker.


Unfortunately, many lawyers consider the health care power of attorney as a “throw-in” document in an estate plan.  In reality, it’s important to consider the hidden definitions for terms used in the statutory advance directives and the Health Care Surrogate Act.


For example, a principal should be very careful when naming both primary agent and successor agents.  Many clients seem to be willing to vest life-and-death authority in persons whom he/she knows are inappropriate.  Individuals will put fear of causing offense within the family above their own welfare. We attorneys must point out that even a successor agent may come to hold your life in their hands if your best agent is “unavailable.”  Even if an individual is a third or a fourth successor agent, if the higher-priority agents are unavailable, then whichever agent is available will make the final decision.  An agent is considered “unavailable” if “the person’s existence is not known; the person has not been able to be contacted by telephone or mail.”


I recommend that attorneys add full contact information of agents into the Power of Attorney. This simple act makes it easier for health care providers to communicate with the highest priority agent during a time of crisis. 

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