The Need Is Here, The Time Is Now
Quite simply, the answer is "yes." Every adult over the age of 18 years, including college students, needs to have a living will and/or other advance directives executed in order to have confidence that their personal health care wishes will be followed in the event of physical or mental disability.
But do you need a health care power of attorney "now"? Technically, no. Right now, I can presume that, as you are reading this, you have the capacity to make your own health care and financial decisions. However, as none of us knows neither the day nor the hour when we might become incapacitated, disability planning is something that must be done in advance. When you really need a living will or advance directive, it is already too late. So, as a practical matter, you really do need such advance directives "now."
A Three Step Process
The first advance directive is a living will. A living will is helpful but limited in scope and authority - it is a declaration to the attending physician not to use life-sustaining treatment if there is an incurable or irreversible disease and death is imminent. It may sometimes provide similar direction if there is a state of permanent unconsciousness or "persistent vegetative" condition; however, the precise meanings of those terms can be debated, particularly in light of the Terri Schiavo cases. A living will does not apply to any other type of health care treatment or decision.
The second advance directive is a power of attorney for health care. A power of attorney for health care broadly covers any health care decisions that may need to be made and specifically designates another individual and successor individuals as a person's agent to make such health care decisions. Despite the broad grant of power permissible, a power of attorney for health care can be tailored to a person's specific desires and beliefs, grant decision-making authority in a broader or narrower manner, authorize organ donation, and state your wishes regarding the disposition of remains upon death. A carefully drafted power of attorney for health care in conjunction with good communication with your loved ones and designated agents should minimize or eliminate intra-family disputes about your care in the event you become disabled.
A third advance health care directive permissible in Illinois is a declaration for mental health treatment. This document allows an individual to provide specific direction for their desired mental health treatment, although such matters can also be included within a power of attorney for health care. A declaration for mental health treatment is more frequently executed by individuals who either are currently undergoing mental health treatment or who may likely undergo such treatment in the foreseeable future. This document is effective for three years after it is signed. In contrast, other advance directives remain valid throughout one's lifetime but can also be revoked at any time.
Postponing the process of formally documenting your health care wishes (e.g. making no decision at this time) truly is making a decision: you are essentially deciding that, as of today, you want your family, friends and loved ones to make difficult decisions with little or no guidance and to potentially fight publicly over your health care in court. No one wants that to happen. To think that such things could never happen to you or me is simply wishful thinking.
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The Law Offices of Marc J. Lane, P.C., frequently advises clients on estate and disability planning matters. We would welcome the opportunity to assist you when you are ready to implement or update your planning.
The Lane Report is a publication of The Law Offices of Marc J. Lane, a Professional Corporation. We attempt to highlight and discuss areas of general interest that may result in planning opportunities. Nothing contained in The Lane Report should be construed as legal advice or a legal opinion. Consultation with a professional is recommended before implementing any of the ideas discussed herein. Copyright © 2007 by The Law Offices of Marc J. Lane, A Professional Corporation. Reproduction, in whole or in part, is forbidden without prior written permission.