To view the CMS regulations revising the Medicare Conditions of Participation as set forth at 42 CFR § 482.13(h), click here.

A Living Will is not a last will and testament.  It is a written statement signed by you that directs your doctor to withhold or withdraw “death delaying procedures” if you have a “terminal condition.”  The Illinois Living Will Act defines “terminal condition” as an incurable or irreversible condition where death is imminent, and the use of death-delaying procedures would only prolong the dying process.

• Living Will or Power of Attorney for Healthcare?

Even though a power of attorney for health care and a Living Will apply to some similar situations, the Living Will is very different.  A Living Will applies only if you have a terminal condition and only to decisions by your doctor to stop or not begin medical treatment that delays the moment of your death.  While a power of attorney for health care permits your agent to stop water and tube feeding, if that is your wish, the Living Will does not permit your doctor to stop water and tube feeding if their withdrawal would cause your death from dehydration or starvation.

A Living Will not only gives your doctor specific instructions, it also gives your loved ones the information they need to advocate for your wishes.  This is all the more important if your loved ones’ authority to carry out your wishes is likely to be questioned, as it could be with same-sex partners or friends who have no legal relationship.  Ask your attorney if your state has an official  form that is used for a Living Will as this will reduce the potential for doubts or challenges.  Here is the form for Illinois.

• Who Should Have a Copy of Your Living Will?

Give an original Living Will document (signed, witnessed, and notarized) to your doctor.  Give copies to your closest loved ones and any other people upon whom you can rely to carry out your wishes, including your agent under your power of attorney for health care.   I also recommend that clients keep a second original in their Life Planning Toolbox.

To be certain that medical decisions stay in the hands of your partner, you need to prepare the right legal documents.  In Illinois these documents are known as a power of attorney for health care and a living will.

Health Care and End-of-Life Issues

Often doctors and other medical providers will look to a family member as defined by state law to make medical decisions for you if you can’t do so for yourself.  Most states give that authority to a legally recognized spouse, adult children, parents and other blood relatives.  Unless you have a power of attorney for health care that appoints your partner to make these decisions, she or he has no authority to do so.  Often times, biological family members can, and do, exclude same-sex partners from decisions.   This document can give your partner other rights, including:

• visiting you in the hospital or other facility even when other visiting is restricted;
• hiring and firing medical personnel or moving you to a different facility;
• making decisions about your medical care if you become incapacitated;
• dmaking end-of-life decisions.

A living will acts as your written directions to medical personnel about whether you want death-delaying procedures used if you have a terminal condition and are unable to communicate your wishes.  This document can provide a clear statement of your wishes in the event that your biological family has different views and/or does not want your partner making decisions.

In Illinois, the Health Care Power of Attorney and the Living Will are created and authorized by statute in the Illinois Powers of Attorney for Health Care Law, 755 ILCS 45/4-1 et seq., and the Illinois Living Will Act, 755 ILCS 35/1 et seq.

Planning.  No one can do it for you.  Failing to plan could have lasting effects on your future and that of your loved ones.   Make the time to create the legal documents that will ensure that you control who makes health care decisions for you when you can’t.