No one can predict when a serious illness or accident might occur. This is especially true during the current COVID-19 crisis. When something like that does occur, you may need someone else to speak or make health care decisions for you. If you plan now, you can increase the chances that the medical treatment you get will be the treatment you want.

In Illinois, you can choose someone to be your “health care agent.” Your agent is the person you trust to make health care decisions for you if you are unable or do not want to make them yourself. These decisions should be based on your personal values and wishes.

It is important to put your choice of agent in writing. The written form is often called an “advance directive.” You may use the statutory form or another type of form, as long as it meets the legal requirements of Illinois.

WHAT ARE THE THINGS I WANT MY HEALTH CARE AGENT TO KNOW?

The selection of your agent should be considered carefully, as your agent will have the ultimate decision-making authority once this document goes into effect, in most instances after you are no longer able to make your own decisions. While the goal is for your agent to make decisions in keeping with your preferences, and in the majority of circumstances that is what happens, please know that the law does allow your agent to make decisions to direct or refuse health care interventions or withdraw treatment. Your agent will need to think about conversations you have had, your personality, and how you handled important health care issues in the past. Therefore, it is important to talk with your agent and your family about such things as:

1. What is most important to you in your life?
2. How important is it to you to avoid pain and suffering?
3. If you had to choose, is it more important to you to live as long as possible, or to avoid prolonged suffering or disability?
4. Would you rather be at home or in a hospital for the last days or weeks of your life?
5. Do you have religious, spiritual or cultural beliefs that you want your agent and others to consider?
6. Do you wish to make a significant contribution to medical science after your death through organ or whole body donation?
7. Do you have an existing advanced directive, such as a living will, that contains your specific wishes about health care that is only delaying your death? If you have another advance directive, make sure to discuss with your agent the directive and the treatment decisions contained within that outline your preferences. Make sure that your agent agrees to honor the wishes expressed in your advance directive.

WHAT KIND OF DECISIONS CAN MY AGENT MAKE?

If there is ever a period of time when your physician determines that you cannot make your own health care decisions, or if you do not want to make your own decisions, some of the decisions your agent could make are to:

1. Talk with physicians and other health care providers about your condition.
2. See medical records and approve who else can see them.
3. Give permission for medical tests, medicines, surgery or other treatments.
4. Choose where you receive care and which physicians and others provide it.
5. Decide to accept, withdraw or decline treatments designed to keep you alive if you are near death or not likely to recover. You may choose to include guidelines and/or restrictions to your agent’s authority.
6. Agree or decline to donate your organs or your whole body if you have not already made this decision yourself. This could include donation for transplant, research and/or education. You should let your agent know whether you are registered as a donor in the First Person Consent registry maintained by the Illinois Secretary of State or whether you have agreed to donate your whole body for medical research and/or education.
7. Decide what to do with your remains after you have died, if you have not already made plans.
8. Talk with your other loved ones to help come to a decision (but your designated agent will have the final say over your other loved ones). Your agent is not automatically responsible for your health care expenses.

WHO SHOULD I CHOOSE TO BE MY HEALTH CARE AGENT?

You can pick a family member, but you do not have to. Your agent will have the responsibility to make medical treatment decisions, even if other people close to you might urge a different decision. The selection of your agent should be done carefully, as he or she will have ultimate decision-making authority for your treatment decisions once you are no longer able to voice your preferences. Choose a family member, friend or other person who:

1. Is at least 18 years old;
2. Knows you well;
3. You trust to do what is best for you and is willing to carry out your wishes, even if he or she may not agree with your wishes;
4. Would be comfortable talking with and questioning your physicians and other health care providers;
5. Would not be too upset to carry out your wishes if you became very sick; and
6. Can be there for you when you need it and is willing to accept this important role.

WHAT IF MY AGENT IS NOT AVAILABLE OR IS UNWILLING TO MAKE DECISIONS FOR ME?

If the person who is your first choice is unable to carry out this role, then the second agent you chose will make the decisions; if your second agent is not available, then the third agent you chose will make the decisions. The second and third agents are called your successor agents and they function as back-up agents to your first choice agent and may act only one at a time and in the order you list them.

WHAT WILL HAPPEN IF I DO NOT CHOOSE A HEALTH CARE AGENT?

If you become unable to make your own health care decisions and have not named an agent in writing, your physician and other health care providers will ask a family member, friend or guardian to make decisions for you. In Illinois, a law directs which of these individuals will be consulted. In that law, each of these individuals is called a “surrogate.” There are reasons why you may want to name an agent rather than rely on a surrogate:

1. The person or people listed by this law may not be the person you would want to make decisions for you.
2. Some family members or friends might not be able or willing to make decisions as you would want them to.
3. Family members and friends may disagree with one another about the best decisions.
4. Under some circumstances, a surrogate may not be able to make the same kinds of decisions that an agent can make.

WHAT IF THERE IS NO ONE AVAILABLE WHO I TRUST TO BE MY AGENT?

In this situation, it is especially important to talk to your physician and other health care providers and create written guidance about what you want or do not want, in case you are ever critically ill and cannot express your own wishes.

You can complete a living will. You can also write your wishes down and/or discuss them with your physician or other health care provider and ask him or her to write it down in your chart. You might also want to use written or on-line resources to guide you through this process.

WHAT DO I DO WITH THIS FORM ONCE I COMPLETE IT?

Follow these instructions after you have completed the form:

1. Sign the form in front of a witness. See the form for a list of who can and cannot witness it.
2. Ask the witness to sign it, too.
3. There is no need to have the form notarized.
4. Give a copy to your agent and to each of your successor agents.
5. Give another copy to your physician.
6. Take a copy with you when you go to the hospital.
7. Show it to your family and friends and others who care for you.

WHAT IF I CHANGE MY MIND?

You may change your mind at any time. If you do, tell someone who is at least 18 years old that you have changed your mind and/or destroy your document and any copies. If you wish, fill out a new form and make sure everyone you gave the old form to has a copy of the new one, including, but not limited to, your agents and your physicians.

Contact one of the attorneys at EV Has, LLC today to help you through this process and prepare the forms in accordance with Illinois law. Send an email to clerks@evlawgroup.com and we will respond to get the process started and give you some peace of mind during this uncertain time.