Posted by: Heinz Brisske

Estate Planning involves not only the distribution of your assets after your death, but important lifetime issues, as well. One of the most important lifetime issues addressed in a typical estate plan is health care decision-making. Advance medical directives are the documents that specifically deal with health care decisions, specifically if you don’t have the capacity to make those decisions for yourself.

Everyone over the age of eighteen (18) should have advance medical directives. In Illinois, there are two advance medical directives:

  • Durable Power of Attorney for Health Care (names agents, and grants those named agents the power to make certain health care decision for you); and
  • Living Will (comes into play if none of your health care agents are available to exercise their powers, and declares to your health care providers that you do not want your life to be artificially prolonged if you are in an irreversibly terminal situation).

When we prepare an estate plan for our clients, that estate plan always includes these two directives and a thrid directive (arising out of federal law), the HIPAA Authorization. Under HIPAA, you are given the right to decide who should have access to your health care information. Your HIPAA agents do not have the power to make any decisions with regard to your care; only your Power of Attorney for Health Care can grant that power. HIPAA stands for Health Insurance Portability and Accountability Act. For our purposes, HIPAA contains health care privacy provisions that prohibit anyone not specifically authorized from accessing your health care information. As a practical matter, it means that, without your specific authorization, members of your family may be barred from getting information about your medical and health care situation.

For those of our clients with college-age children, we also recommend that the children execute advance medical directives. There is nothing more frustrating for the parent of a college student than to be told that the child’s medical condition cannot be disclosed by the college health care facility. Appropriate advance medical directives, and specifically a HIPAA Authorization, will solve that problem.

Who should you choose as your health care agent? Someone that you trust to carry out YOUR health care wishes, regardless of how that person feels about his or her own. Under Illinois law, you may not name co-agents; only one person may act as your agent at any given time. And how can you be sure that your agent knows your wishes? By having a “kitchen table” discussion about those issues to let your agent know what you feel strongly about. The Illinois Short Form Power of Attorney for Health Care gives the agent broad powers to, among other things, decide your general medical care, make anatomical gifts on your behalf after your death, discharge medical and health care providers and make end-of-life decisions.

In default of advance medical directives, you will have to rely on the Health Care Surrogate Act, which creates a hierarchy of individuals that will be authorized to act on your behalf if you haven’t executed a Power of Attorney for Health Care. The person appointed may be estranged from your family, or may have beliefs completely contrary to yours, and yet he or she will be empowered to make health care decicisions for you that may very well have life and death implications.

Illinois also has a Disposition of Remains Act, which allows you to appoint the person who will dispose of your bodily remains. You may either indicate that your health care agent is appointed to take on that responsibility, or you can appoint another, different, person to handle those decisions in a document called an Appointment of Agent to Control Disposition of Remains.

The bottom line is that you cannot leave those decisions to chance, or to the default provisions of state law. You can, and should, decide who is to act for you to make health care and medical decisions if you are unable to do so. Contact your estate planning attorney and have him or her prepare the appropriate advance medical directives for you. Take control. Be proactive. Don’t leave those very important matters to chance.