Health care providers routinely turn to spouses or relatives to make decisions on behalf of incapacitated patients.
Increasingly, however, individuals are relying on caregivers who are not a biological or legal relative. People in non-marital relationships, including unmarried couples and single individuals who rely on friends for support rather than relatives, should execute an advance directive to ensure that the person they want to be able to make health care decisions for them is legally able to do so. However, advance directives are just as important for married couples because they ease the burdens associated with making difficult health care decisions on behalf of their spouse when the incapacitated spouse's wishes or beliefs are otherwise unknown or unclear.
Generally, advance directives are a set of documents that express how you want medical decisions made if you are unable to make such decisions yourself. Included in advance directives are living wills and Durable Powers of Attorney for Health Care. Both may be executed by any adult of sound mind so long as they are executed voluntarily, signed, and witnessed.
Living Will
A living will provides for the withholding or withdrawal of "death delaying procedures" that would serve only to postpone the moment of death if the patient has a terminal condition such that death is imminent. Such procedures may include assisted ventilation, artificial kidney treatments, and blood transfusions. However, a health care provider still has a responsibility to provide treatment to alleviate a patient's pain.
Durable Power of Attorney for Health Care
A Durable Power of Attorney for Health Care allows you to choose an "Agent" to consent, authorize, refuse, withhold, or withdraw medical care for you if you become incapacitated. The Illinois Durable Power of Attorney for Health Care form also contains various statements about life-sustaining treatments that you can agree with and initial for your Agent to use as guidance.
The Durable Power of Attorney for Health Care is an important resource for those in nonmarital relationships because if an incapacitated patient has not executed a Durable Power of Attorney for Health Care, a health care "surrogate" will be selected based upon a statutory hierarchy of relatives beginning with the patient's spouse and following with, in order, the patient's adult child, parent, adult sibling, adult grandchild, and last, a close friend. A "close friend" is an adult who has exhibited special care and concern for the patient. A close friend must present an affidavit attesting that he or she is a close friend and is willing and able to become involved in the patient's health care. The affidavit must also state facts and circumstances demonstrating that the close friend has maintained regular contact with the patient so as to be familiar with the patient's beliefs.
Key Considerations
The recent Supreme Court decision, Obergefell v. Hodges, held that all states must license and recognize same-sex marriages, and thus, for a married incapacitated patient, the patient's spouse—regardless of sex—would become the patient's health care surrogate in the absence of a power of attorney. However, for couples choosing not to marry, the significant other of an incapacitated patient will be the last option on a long list of potential health care surrogates unless the patient has appointed his or her significant other as his or her power of attorney Agent. Thus, if there is no executed Durable Power of Attorney for Health Care, a biological family member will be able to make health care decisions for an unmarried relative regardless of the existence and preferences of his or her significant other.
It is therefore extremely important to execute a Durable Power of Attorney for Health Care whether you are married or single. If you are unmarried or if you prefer someone to make health care decisions for you that is not a biological relative or spouse, the Durable Power of Attorney for Health Care provides the best security to ensure that a close friend or significant other will legally be able to make important health care decisions for you. The Durable Power of Attorney for Health Care is an important resource for married couples because it serves as valuable guidance for your Agent, as it provides the opportunity for you to express your health care wishes and beliefs. Additionally, it provides your Agent with broader authority than if your spouse was statutorily appointed to be your surrogate, and it is an easy source of recognition for your Agent as a decision-maker in the health care setting.
Once you have executed an advance directive, it is important to talk with your Agent to ensure that he or she understands your wishes. Additionally, provide a copy of your advance directive to your Agent, family, friends, health care providers, and/or attorney so that they are readily available in an emergency.
For those that have executed an advance directive, keep in mind that you may and should amend or revoke your advance directive as needed based on changes in your circumstances, beliefs and wishes, and advances in medicine.
If you are interested in learning more about how to ensure your health care wishes and beliefs are effectuated in the event of incapacitation, please feel free to contact any of Clark Hill's experienced attorneys.
Courtney Mathews is an Associate Attorney in Clark Hill PLC's Health Care Practice Group in the firm's Chicago office. She focuses her practice on health care law, assisting clients with transactional, corporate, regulatory, and litigation matters. You may contact her at ( 312 ) 985-5535 or cmathews@clarkhill.com .
