July 2014 • Volume 102 • Number 7 • Page 314
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Revised health care power of attorney awaits governor’s signature
The new law amends the Illinois HCPOA, with the goal of making it easier for patients to understand and fill out the short form so that more of them will.
The General Assembly unanimously passed an amendment to the Health Care Power of Attorney Act that creates a shorter, simpler advance directive or "short form" power of attorney that individuals can complete, expressing their end-of-life health care wishes and appointing a legal agent to make decisions for them. (See "A more user-friendly statutory POA for health care," April 2014 LawPulse.) The bill, SB 3228, is being sent to the governor.
The effort to revise the law was spearheaded by the Illinois State Medical Society and assisted by the Illinois State Bar Association's Health Care Law Section Council, ISBA's Trusts and Estates Section Council, the Illinois Hospital Association, and other organizations. The goal was to get more patients to fill out the statutory form, or one of their own choosing, to ensure that their end-of-life wishes are known in the event they become unable to advocate on their own behalf.
Members of the ISBA's Elder Law Section Council opposed the revisions, with one member saying the existing law was carefully drafted just a few years ago and better protected and respected elderly patients than the amendment.
User (and doctor) friendly
The amended law changes four sections of the Act, codified at 755 ILCS 45, notably section 45/4-10. It includes a simply drafted FAQ section, giving patients, or "principals," a guide to a number of issues they might consider. It also clearly delineates the powers patients' HCPOA agents will have in making decisions for them. The FAQ is modeled after a popular advance directive known as the Five Wishes, those who helped draft the amendments said.
"I think the short form does a couple of things," said Keith Emmons, a healthcare attorney in Champaign and a member of both the ISBA's Health Care Law Section Council and Standing Committee on Legislation. "It's user friendly and it allows the people who are implementing [patients'] wishes to rely on the directive so we know who is making the decisions and what those decisions are. It's helpful for the health care providers as well."
The preamble to the short form begins with a question: "What are the things I want my health care agent to know?" Individuals are advised to think carefully about who might be their agent and to begin having conversations with that person.
It goes on to ask seven questions, including the following five:
- What is most important to you in your life?
- How important is it to you to avoid pain and suffering?
- If you had to choose, is it more important to you to live as long as possible, or avoid prolonged suffering and disability?
- Would you rather be at home or in a hospital for the last days or weeks of your life?
- Do you have religious, spiritual, or cultural beliefs that you want your agent and others to consider?
Nudging away from life-sustaining options?
Troubling to one member of the ISBA's Elder Law Section Council was language allowing patients to give up their decision-making authority before they are medically or mentally incapable of making decisions, and, the provisions about when a patient wants medical treatment to cease.
The short form states: "this document goes into effect, in most instances [emphasis added], after you are no longer able to voice your own decisions."
"That implies that the wishes of a competent principal can be overridden by an agent and that is just contrary to agency law," Susan Dawson-Tibbits of Peoria said. Dawson-Tibbits said that the old law was painstakingly drafted to put elderly patients in control of their decisions and that the amended law appears to push patients aside in favor of agents and doctors.
For example, she noted, the revised law states that doctors are the ones to determine when a patient no longer has decision-making capacity and that principals can give up decision-making authority even while they are still competent. It also contains language that Dawson-Tibbits believes nudges a patient to select the withdrawal of life-support.
Patients are directed, under the new short form, to select one of the following two options in their advance directive:
1) "The quality of my life is more important than the length of my life. If I am unconscious and my attending physician believes, in accordance with reasonable medical standards, that I will not wake up or recover my ability to think, communicate with my family and friends, and experience my surroundings, I do not want treatments to prolong my life."
Or 2) "Staying alive is more important to me, no matter how sick I am, how much I am suffering, the cost of the procedures, or how unlikely my chances for recovery are. I want my life to be prolonged to the greatest extent possible in accordance with reasonable medical standards."
Dawson-Tibbits said the old law was more nuanced in its language and that option 2 above is nudging patients and their families away from life-sustaining options in circumstances where doctors might not always know with certainty that there is no hope for recovery.
Emmons acknowledged that the Elder Care Section Council did not approve of the amended law, but he said that other groups approved. "I vetted it with our estate planning people and they were pleased with it. Health care [attorneys] liked it."