Living Will in Illinois

What you need

A living will is a one page document, and the pieces are few.

• A declaration in writing, on paper or in electronic form. The Act gives a sample form you may use, and you may add other specific directions.
• Your signature, or the signature of another person at your direction.
• Two witnesses who are 18 or older.
• Copies for your doctor, your family, and the person who holds your health care power of attorney.

What a living will does

Section 3 of the Act lets an adult of sound mind sign a document directing that, if he or she has a terminal condition, death delaying procedures not be used to prolong life. The Act defines terminal condition as an incurable and irreversible condition such that death is imminent and death delaying procedures serve only to prolong the dying process.

The Act defines death delaying procedures as medical interventions that, in the judgment of the attending physician, serve only to postpone the moment of death. It gives examples such as assisted ventilation, artificial kidney treatments, blood transfusions, and tube feeding. Comfort care and pain relief are not affected. The Act also says nutrition and hydration may not be withdrawn if that would cause death solely from dehydration or starvation rather than from the existing terminal condition.

How to sign it

Under section 3(b), the declaration must be signed by you, or by another person at your direction, and witnessed by two individuals who are 18 or older. The Act does not mention a notary.

The sample form in section 3 includes a statement by each witness. The witness says that he or she knows you personally, believes you to be of sound mind, saw you sign or heard you acknowledge your signature, and did not sign your name for you. Each witness also says that, as far as he or she knows, he or she is not entitled to any part of your estate by intestate succession or under a will or other instrument that takes effect at death, and is not directly financially responsible for your medical care. Choose friends who receive nothing from you.

When it takes effect

A living will does not apply the day you sign it. Under section 2, a person becomes a qualified patient when the attending physician, who has personally examined the patient, diagnoses and verifies in writing that the patient has a terminal condition. Section 4 directs the physician who knows of your declaration to record that determination and the terms of the declaration in your medical record.

Section 3(c) adds a rule for pregnancy. If the attending physician diagnoses a qualified patient as pregnant, the declaration has no force and effect as long as, in the physician's opinion, the fetus could develop to live birth with continued treatment.

A living will and a health care agent

The two documents work together, and the Act decides which one wins. Section 3.5 says a declaration is not operative as long as an agent is available who is authorized by a health care power of attorney to decide about life-sustaining or death delaying procedures. The Act cannot override that agent. If you have both, your agent speaks first. The living will serves as written guidance and covers the situation where no agent can be reached.

For that reason, many people who sign the living will also sign the power of attorney, and give the agent a copy to read before anything happens.

Telling your doctor and keeping it current

Section 3(d) puts the first step on you. If you are able, you provide the declaration to your attending physician and ask whether he or she is willing to comply. A physician who is notified makes it part of your medical records. If the physician will not comply, the physician must promptly say so. You are then responsible for transferring to a physician of your choosing. If you cannot, the physician notifies a person you authorized, then your guardian, then a family member, to arrange the transfer.

You may revoke a living will at any time, whatever your mental or physical condition. Section 5 lists the ways: destroying or defacing it, signing and dating a written revocation, or voicing your intent in front of a witness who is 18 or older and signs and dates a note confirming it. A revocation takes effect when the physician hears of it from you or from someone who witnessed it.

Section 9 states that following a valid declaration is not suicide, and that making one does not affect your life insurance.

Reviewed by Jeff McCarthy, Attorney, Inspired Law Group, 136 E 9th St, Lockport, IL 60441.