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Elder Law Update – August 2009

  Introduction: We hope that our readership has had a pleasant, healthy and productive summer. The firm endeavors to continue our educational outreach with our Elder Law Update series. We hope that you will enjoy this update as it focuses on issues that are relevant in the ongoing health care debate. Living Wills vs. Powers of Attorney for Health Care Over the last several years, it has been difficult to avoid hearing about the Terri Schiavo case. Though many of us would prefer to avoid it, a recent article in the newspaper said that the Schiavo case has increased awareness regarding the importance of living wills. It has, no doubt, increased awareness — but will it really motivate people to actually sign living wills? Are you going to sign a living will now? A living will is an expression of your wishes regarding end-of-life decisions. If you don’t want to be kept alive artificially, should you ever become terminally ill and unconscious with no chance of recovery (as decided by two doctors), you can sign a living will making your wishes clear. For a doctor to withhold or withdraw artificial life sustaining treatment, the law says there has to be clear and convincing evidence that those are the patient’s wishes. The best way to accomplish this, of course, is to put your wishes in writing by signing a living will. As we know, Terri Schiavo didn’t do this. Her husband says that, before Terri became ill, they had discussed these issues and Terri had made it clear she wouldn’t have wanted to be kept alive in her condition. Her parents disagreed. Terri was kept alive for 15 years. While a living will is clear and convincing evidence of a person’s wishes, it is possible that, from a practical standpoint in a true end-of-life situation, the document’s strength might be diminished if parents, children, or spouses claim the living will does not reflect their loved one’s wishes. This could also happen if close family members simply don’t agree with each other as to whether or not the living will reflects their loved one’s wishes. You can imagine the concerns a doctor is going to have when a patient’s living will says she doesn’t want to be kept alive artificially, but the patient’s daughter is there pleading with the doctor to keep her mother alive—saying that she knows her mother would have wanted to live. You must discuss your wishes with your loved ones. While an Illinois living will leaves instructions regarding the withdrawal of death-delaying procedures, it does not extend to the withdrawal or withholding of food and water if that deprivation, rather than an existing terminal condition, would be the cause of death. Further, it does not address any other health care matters that may arise during your life. Thus, a living will serves a very limited purpose. There is an alternative. In Illinois, you can sign an Illinois Statutory Short Form Power of Attorney for Health Care (“HCPOA”), in which you (the “principal”) appoint an “agent” (and one or more successor agents) to make crucial health care decisions in the event that you are unable to do for yourself. You are given three options dealing with the issue of life-sustaining treatment. You can choose one of these options or you can insert a direction of your own choosing. For example, you can authorize your agent to withdraw food and water, even if that deprivation would be the cause of death, if this is your wish. In this respect, your HCPOA will serve as your living will. In your HCPOA, you can also indicate your wishes with respect to anatomical gifts (i.e., organ donations), as well as autopsies and the disposition of remains. Your agent is also authorized to make any other health care decisions on your behalf, not just with respect to life-sustaining treatment. You can also direct that your agent be treated as you would be with respect to disclosure of your medical records. For these reasons, a HCPOA will serve you in a much broader sense than would a living will. The Illinois Power of Attorney Act states that, as long as the agent named in the HCPOA is available, the HCPOA renders any living will executed by the principal inoperative. This does not mean that it is inappropriate to execute both a health care power of attorney and a living will. If the agent under the health care power fails or refuses to act, the existence of a living will may ensure that the individual’s wishes still will be honored. Where an individual also would want artificial nutrition and hydration withdrawn in appropriate circumstances, some commentators suggest that the living will could be modified to reflect this wish. Even if not effective under the Living Will Act, the provision will provide written evidence of the individual’s intent. For all of the reasons set forth above, we recommend that our client’s rely on the health care power of attorney in most situations. Some of you reading this are elder care advocates. You work with the elderly and their families every day. Because these end of life issues are on so many peoples’ minds, we all have the opportunity to educate the individuals we serve on these issues and empower them with the knowledge they need to make informed decisions. It is important for everyone to realize that advance directives, such as a health care power of attorney and living will (to some extent) can be tailored to suit their wishes. For example, some may not want their lives prolonged in any way should they be terminally ill and unconscious, while others may want all means possible used to keep them alive. Still others may wish to decline all life prolonging treatment with the exception of food and water. Regardless of your decision, it is critical that you discuss your wishes with your family members and loved ones. The key is to act now. You may want to begin by contacting an elder law attorney to discuss questions you have about living wills and health care powers of attorney. Once you’ve been educated about your options, you can make the decision that’s right for you. And once your decision is made and you have acted on it, you can take the next step of discussing your wishes with your family. Good elder law attorneys, who take a holistic approach to serving their clients, can help you with this part of the process as well. P.S. Also, don’t miss our new workshop: “Don’t Go Broke in a Nursing Home“, beginning this fall.

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Anthony B. Ferraro Attorney-CPA The Law Offices of Anthony B. Ferraro, LLC The Estate & Trust, Elder and Asset Protection Law Firm Columbia Centre I 5600 N. River Road, Suite 764 Rosemont, IL 60018 PH (847) 563-4887 FAX (847) 292-1221 Websitehttps://abferrarolaw.com/ Emailabferraro@abferrarolaw.com   Pursuant to federal regulations imposed on practitioners who render tax advice (“Circular 230”), we are required to advise you that any tax advice contained herein is not intended or written to be used for the purpose of avoiding tax penalties that may be imposed by the Internal Revenue Service. The Illinois rules of Professional Conduct require attorneys to identify unsolicited communications to prospective clients as Advertising Material. If the context requires, please consider this letter and the enclosed literature to be Advertising Materials. This document is for discussion purposes only and is not intended to be, nor should it be, considered as legal advice. You should never attempt Medicaid planning, Estate Planning, Probate, or Estate and Trust Administration without the advice of competent legal counsel.