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The term “advance directive” (or “advance health care directive”) is not defined by Illinois law as such. Still, the law does recognize various documents that fall under this category that help guide medical decisions, including:
Living Will—A written instruction from a person detailing their preferences regarding medical care when they can no longer participate in decisions about their treatment.
Medical Power of Attorney—A legal document that allows an individual to appoint someone else to make medical decisions on their behalf. Within the context of an advance directive, it is a specific type of durable power of attorney that focuses on health care decisions.
Anatomical Gift Act—Declaration by an individual regarding the donation of their organs and tissue.
Signing Requirements for Illinois Advance Health Care Directive
The requirements for an advance health care directive to be legally recognized and effective in Illinois are stated in Section 3 (755 ILCS 35/) of Illinois Compiled Statutes as follows:
Signing Requirements for Illinois
Eligibility. The individual must be of sound mind and at least 18 years old or legally emancipated under the Emancipation of Minors Act.
Execution. The document must be signed by the declarant or by another person at the declarant's direction.
Witnesses. The signing must be witnessed by two individuals who are at least 18 years old.
Additional considerations. If the declarant is a qualified patient who is pregnant, the declaration will not take effect if, in the attending physician's opinion, the fetus can reach live birth with continued medical intervention.
Notification responsibilities. If the patient is capable, they must inform their attending physician about the declaration and provide a copy.
Severability. The declaration may include specific directions, and if any part is found invalid, the remaining parts still remain effective.
Illinois Advance Health Care Directive Revocation & Changing
An Illinois advance directive becomes effective when a person is diagnosed with a terminal condition and is no longer able to actively participate in medical decision-making.
Section 5 (755 ILCS 35/5) specifies that a person can revoke their health care advance directive at any time, regardless of their mental or physical condition. They can do it in several ways, such as:
Directive Revocation and Changes
Physically destroying the document
Writing a statement to revoke the advance directive
Verbally expressing their wish to revoke the directive in front of a witness who is at least 18 years old and who must sign and date a document
Deleting an electronic directive in a way that shows an individual’s intention to revoke it
The revocation takes effect when the attending physician is notified. The physician must then record the date and time of revocation in the patient's medical record.
Additional Legal Considerations for the Illinois Advance Health Care Directive
According to Section 8 (755 ILCS 35/8), individuals who force someone to sign an advance directive or who lie about or hide revocations can be charged with involuntary manslaughter if their actions result in the withdrawal of life-sustaining treatment that leads to the death of the individual who signed the advance directive.
As stated in 755 ILCS 35/9, making an advance directive does not impact the sale or issuance of life insurance policies. It also does not change the terms of an existing life insurance policy. Additionally, withholding or withdrawing life-sustaining treatment from a qualified patient will not affect the validity of their life insurance, even if the policy says otherwise.
How to Choose a Health Care Agent in Illinois
Choosing a health care agent in Illinois is a crucial aspect of advance care planning. Begin by selecting someone you trust. This person should understand your values and preferences regarding your health care and be willing to accept that role. Legally, your Illinois health care proxy must be at least 18 years old and cannot be your health care provider or an employee of your health care facility.
Before you make the final choice, have an open conversation about your wishes and discuss any potential decisions they may need to make to ensure they are the right fit for the role.
What Happens if You Don’t Have an Advance Directive in Illinois?
If you don’t have an advance directive for health care in Illinois, a health care surrogate will be appointed. The surrogate, chosen from your family or close friends, can make medical choices on your behalf, but there are limitations.
They cannot withdraw or withhold life-sustaining treatment unless you have a qualifying condition, such as a terminal or incurable condition, certified by two doctors. Without an advance directive form, your surrogate might face challenges in making decisions that align with your preferences, which could lead to unwanted treatments.