By J. Erbes, SIUC Legal Services to Older Persons.

We all know there may come a time in our lives when we can no longer make decisions. The question is, can we still direct the kind of care we receive? In previous articles I have discussed the importance of a properly drafted and executed advance directive, like a durable power of attorney for health care. Such a directive allows us to designate whom we want to make decisions for us, and under what circumstances that person will be allowed to make those decisions.

A few years ago something happened to make it even more important that seniors complete medical advance directives – the Illinois Health Care Surrogate Act was amended. Originally, the Health Care Surrogate Act addressed the problem of how to make “end of life” medical treatment decisions when a person does not have a Living Will or Health Care Power of Attorney, is terminally ill, and is incapable of expressing their wishes. The Act allows for a private decision to be made by a family member or close friend about life sustaining treatment without the need to go to court.

This law was changed last year to allow a surrogate to make general medical decisions for an incapacitated person. Under the new law, people are considered to be incapacitated if one attending physician deems them unable to make informed decisions for their medical care. In effect, what can now occur under this law is that someone may become your health care decision maker by default for the rest of your life. This person could be someone you absolutely would have rejected as a decision maker.

Consider the following scenario:

You have two sisters. “Mary” is very close to you, but “Jane” is not. You trust Mary immensely, while you know Jane is driven by greed. You name Mary as your agent in your Health Care Power of Attorney. No one is listed as a successor agent, and you specifically reject any thought of naming Jane. You move to the town where Mary lives. Sometime later, Mary suggests that you need to move to a nursing home. You reject this completely. In fact you are so upset by the thought that Mary would have the authority to place you in a nursing home that you tear up your power of attorney, thereby revoking it.

Three years later, you fall and are hospitalized. Mary is out of the area. Jane discusses your condition with your physician, who determines that you are unable to make informed decisions. Since you have no health care power of attorney, Jane is appointed as a surrogate decision-maker under the Health Care Surrogate Act. She decides that you need nursing home placement and places you in a facility near her home, which isolates you from your other sister and your friends.

What has happened in this example is not as outlandish as it may seem. Similar situations happen frequently. What can be done to avoid such a dilemma?

When establishing a health care power of attorney, it is important to consider naming successor agents. If you wish to dismiss your primary agent, or if the primary agent dies, or is unavailable, a secondary agent – someone you trust – can take over as your agent. By not naming a secondary agent, you run the risk of having a “default” person in charge of your medical decision-making.

When you have a Power of Attorney prepared, if there is someone you would not want under any circumstances to have decision-making authority, such information could be included in the Power of Attorney.

It is also crucial that you carefully think out a determination to revoke a Power of Attorney. Your thoughtful prior selection of an agent should not be canceled by a rash decision. Oftentimes, we need protection from ourselves! We often suggest including language in a Power of Attorney that makes it revocable only upon specific written revocation. This can protect both you and your agent from an imprudent act.

Understanding what advance directives are and how they work is important in life planning. Understanding how the laws work is crucial if you have not made your own directives, or if your directives lapse or are revoked. Make sure your planning is a result of deliberate thought--not haphazard thinking or by “default.”

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