July 2014 • Volume 102 • Number 7 • Page 314
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LawPulse
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."
Member Comments (3)
This article would be a lot more useful if the bill number were given. That way, we can go to the General Assembly website and read the full bill in its entirety. Also, we can monitor its progress and know when it is signed into law.
Please include this essential information in the future.
Good point. It's SB 3228. There's now a link in the first paragraph.
Your article states that the FAQ section of the revised notice to principal is modeled after the Five Wishes advance directive. The Five Wishes advance directive sets forth a series of end of life or other health care decisions for the principal to make, and the principal makes those decisions, for the most part, by checking boxes or crossing out statements. I find it striking that the drafters of SB 3228 chose to depart from the Five Wishes check-the-box/cross-out-the-statement format.
The revised notice does give the principal questions and issues to think about, but those questions and issues could have been appended to the current (2011) version of the health care POA. Compared to the revised version, the current health care POA is more comprehensive and more legally precise, yet sufficiently user-friendly so that one can fill in the blanks and have it signed and witnessed without the assistance of an attorney.
Concerning guidance for the withholding or removal of life-sustaining treatment, the current POA allows the principal to initial one of three statements. The revised POA reduces these three statements to two, and the one statement that contemplates withholding or removal applies only if the principal is unconscious. By substituting more restrictive language for the broader statements of the current POA, the drafters of SB 3228 may have created more uncertainty, rather than less.
SB 3228 has other problems, including the following:
First, SB 3228 amends the law to list five additional categories of health care providers or professionals who may not be witnesses to the signing of a health care POA, but the witness clause of the revised POA refers only to the principal's physician or mental health service provider - the five additional categories are left out.
Second, the revised POA contains a paragraph where one may name successor agents, but this paragraph comes after the signatures of the principal and the witness. Logically, this paragraph should precede the signature lines. By putting the paragraph at the end, the drafters risk the principal overlooking the paragraph and naming no successor agents.
Third, in some instances, the language is imprecise. For example, at one point the revised notice states that the agent must be "at least 18 years old", while at another point, in discussing possible use of a non-statutory form, it states that the agent must be "over 18 years of age" (the latter phrase was added by House Amendment No. 2).
If Governor Quinn signs SB 3228 in its present form, I hope that the General Assembly will revisit the law and address the problems noted above.
Brian A. Forgue
Elmhurst, Illinois