Qualifying Conditions that Trigger a Living Will

Mar 08, 2015

By Illinois Senior Advocate Rick Law.  Estate Planning Attorney and Medicaid Crisis Planner in Aurora, IL just off the I-88 tollway.

In Illinois, “qualifying condition” means the existence of one or more of the following conditions in a patient certified in writing in the patient’s medical record by the attending physician and by at least one other qualified physician:

• (1) “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 treatments would only prolong the dying process. (2) “Permanent unconsciousness” is a condition that, in 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 and (3) “incurable or irreversible condition” means an illness or injury [i] for which there is no reasonable prospect of cure or recovery, [ii] that ultimately would cause the patient’s death even if life sustaining treatment is initiated or continued, [iii] that imposes severe pain or otherwise imposes an inhumane burden on the patient and [iv] for which initiating and continuing life sustaining treatment in light of the patient’s medical condition provides only minimal medical benefits.

Notice that in the qualifying conditions above, there is no mention of a condition in which a person has Alzheimer’s or dementia and gets to the point of not being able to swallow.  It does not say what to do, because a person with Alzheimer’s or dementia is not likely to be diagnosed as being terminally ill.

A terminal illness or condition is most often defined by state law as the triggering event for the use of a living will and/or end-of-life decision making by an agent under a health-care power of attorney. It is common for a “terminal illness or condition” to indicate that a person will die “imminently,” as that term is defined in state law.

Physicians do understand that Alzheimer’s is progressive and fatal, but they often do not call it a terminal illness that puts the patient in a condition in which they will die “imminently.” This distinction causes great confusion among agents under a health-care power of attorney and family members, as it is unclear to them what decisions the principal would want regarding life-prolonging health care.

The majority of those who are affected with Alzheimer’s do not die of Alzheimer’s disease, but from other causes prior to Alzheimer’s disease running to the end of its progressive, degenerative, and fatal trajectory. That is why it is so important to have a powerful power of attorney with qualifying conditions that are suited to the desires of the signee and clearly describe the principal’s desires.

If you’re ready to start getting your estate in order and secure your assets for the “worst-case” scenario, please give our office a call at 800-310-3100. Your first consultation is absolutely free.  We’ll let you know what steps you need to take, right now, to protect yourself and your family.  Call now.

Sincerely,

Rick L. Law, Attorney, Estate Planner for Retirees.

Rick was named the #1 Illinois elder law estate planning attorney by Leading Lawyer Magazine. He has been quoted in the Wall Street Journal, AARP Magazine, TheStreet.com, and numerous newspapers and articles. Rick is the lead attorney for Law Elder Law, LLP, focusing in Estate Planning, Guardianship, and Nursing Home Solutions. His goal is to give retirees an informed edge when it comes to dealing with an uncertain future.  Get flexible retirement strategies that work during good times and bad, plus information on how you can save your home and assets from being used to pay for long term care.