What is a Living Will?

A Living Will is a legal document that allows a person to give instructions about their preferences regarding medical treatment in the event that the person becomes unable to communicate such wishes due to illness or incapacity. It provides healthcare providers and family members about the person’s preferences in relation to the treatment options and types of medical interventions to receive in particular situations.

A person that makes a Living Will is called a “declarant” or “principal”.

Requirements for a Living Will in Illinois

In Illinois, the Living Will Act states the legal requirements for creating a valid Living Will. Essentially, you must be a legal adult making the declaration freely and without external influence, have two witnesses, and clearly state your healthcare preferences. A valid Living Will made in Illinois is valid in other states.

These requirements are listed below:

• Capacity: You must be of sound mind and legal age (18 years and older as required under the Emancipation of Minors Act). This requirement ensures that you understand the nature and potential outcome of the decisions being made.
• Written and Signed Document: A Living Will is a declaration and it must be in writing and signed to be valid. Verbal instructions are not legally binding. If you are unable to sign, someone else can do so on your behalf in your presence and following your direction, provided they are not someone who will inherit from you or someone who provides your healthcare.
• Witnesses: In Illinois, two witnesses are required to witness your signature or your acknowledgment of the document. The witnesses must be at least 18 years old, and they cannot be the person you appointed as your agent (if you have appointed one) or your healthcare provider. They acknowledge that the process of declaring the Living Will is done in good faith and without undue pressure or influence.
• Notarization: Notarization of a Living Will is not required in Illinois. However, having the Living Will notarized can add an extra layer of legal validity. Notarization involves signing the document in the presence of a notary public who verifies your identity and witnesses your signature.
• Revocation: You have the right to revoke or change your Living Will at any time, as long as you are of sound mind. Revocation can be by:
  • Destroying or defacing the document in a way that indicted intention to cancel it,
  • A written statement, signed and dated in the presence of witnesses, revoking the Living Will,
  • Revoking the Living Will orally or through any other means expression in the presence of a witnesses,
  • Making an electronic declaration.

Note: In Illinois, if a patient is able to express their healthcare preferences and desires, those preferences take precedence over any directives outlined in their Living Will or advance directive even without revoking the document. This means that even if a patient has previously documented their healthcare wishes in a Living Will, if they are currently capable of making decisions and expressing different preferences, their current desires should be followed.

Advance Directive vs. Living Will: What’s the difference?

An Advance Directive is a broader legal document that includes a Living Will along with other instructions regarding healthcare decisions, such as appointing a healthcare proxy. A Living Will specifically outlines an individual’s preferences for medical treatment if they become unable to communicate. While a Living Will is a type of advance directive, the term “Advance Directive” encompasses a wider range of healthcare instructions beyond just specifying treatment preferences.

Why Would You Need Living Wills in Illinois?

In Illinois, having a Living Will is important for proactive healthcare planning and ensuring that your healthcare preferences are carried out even if you are unable to communicate them yourself. Since a Living Will serves as a guiding document for your healthcare provider and family members, it will outline your preferences for medical treatment and end-of-life care in various scenarios. By legally documenting your healthcare preferences, you not only provide clarity for healthcare providers but also alleviate potential conflicts among family members during critical moments and ensure that your healthcare decisions align with your values and desires.

One significant advantage of having a Living Will is that it facilitates conversations with your loved ones. For instance, if you believe recovery is not likely in a meaningful way, your Living Will serves as a clear directive on your behalf. However, without this document, family members may struggle to interpret past discussions about your preferences. They might recall statements like “she would not want to live that way” or “she once said to keep her alive,” but these memories may not provide the clarity needed in critical situations.

Another example, perhaps you have strong beliefs about end-of-life care and wish to avoid certain medical interventions. A Living Will allows you to specify these preferences, ensuring that your values are respected even if you are unable to communicate them directly. This can prevent family members from feeling burdened by the responsibility of making difficult decisions on your behalf, and it can also alleviate potential conflicts among loved ones who may have differing interpretations of your wishes.

Ultimately, having a Living Will in Illinois provides you with the opportunity to proactively shape your healthcare decisions, maintain autonomy, and ease the burden on your family during challenging times. It ensures that your voice is heard, your values are respected, and your wishes are honored, even when you're unable to speak for yourself.

Benefits of Having a Living Will

Benefits of having Living Wills in place in Illinois are:

• Ensures that your healthcare preferences are known and respected if you become unable to communicate them.
• Provides peace of mind for you and your loved ones by clarifying your wishes regarding medical treatment.
• Facilitates conversations with family members, fostering understanding and reducing potential disputes.
• Upholds your autonomy and values by allowing you to specify preferences for end-of-life care.
• Eases the burden on your family by providing clear directives for healthcare decisions during challenging times.

Potential Risks of Not Having a Living Will

Potential risks of not having Living Wills in Illinois include leaving important medical decisions up to chance or subject to interpretation by others. Without clear guidance, family members may disagree about the appropriate course of action, leading to avoidable stress and conflict during already challenging times. Moreover, healthcare providers may be unsure about how to proceed, potentially resulting in treatments that do not align with your wishes.

Examples of Situations Where a Living Will Can Be Useful

Examples of situations where Living Wills can be useful in Illinois include scenarios involving terminal illnesses, severe disabilities, or irreversible conditions where quality of life considerations become paramount. For instance, if you suffer from an incurable illness or in a vegetative state, you may have preferences regarding medical treatments or health-related actions. A Living Will allows you to express these preferences clearly, ensuring your wishes guide medical decisions.

In these situations, a Living Will can specify preferences regarding life-sustaining treatments, resuscitation, and end-of-life care. It can also address preferences for pain management, hospice care, and organ donation, providing guidance for healthcare providers and ensuring your wishes are honored.

When Does a Living Will Take Effect in Illinois?

In Illinois, a valid Living Will takes effect primarily when the individual has a condition and becomes unable to communicate or make healthcare decisions for themselves. This condition is often referred to as “incapacity” or “lack of decision-making capacity”. Once the individual is deemed incapacitated, healthcare providers and appointed agents must abide by the directives outlined in the Living Will.

The Living Will must first be valid, in compliance with the Illinois Living Will Act. This means the person making the will must have legal capacity and it must be signed in the presence of two witnesses who attest to the individual’s sound mind and lack of duress or undue influence. Once properly executed, the Living Will remains in effect until revoked or until the individual’s death. A Living Will in Illinois will be valid in another state, unless there are contents in the Living Will that contradict with the laws of that state.

Persons making a Living Will may specify the start and duration of a Living Will in the document. They should clearly outline the conditions under which the directives in the document should be followed. This may include specifying the types of medical conditions or circumstances under which the Living Will should take effect, as well as any preferences regarding the continuation or cessation of treatment in certain situations. Regular review and updating of the Living Will, especially in response to changes in health or personal circumstances, can help ensure that the document accurately reflects the individual's current wishes regarding medical care.

How to Get Living Wills in Illinois

To obtain a Living Will in Illinois, individuals must adhere to specific legal requirements outlined under the Illinois Living Will Act. This includes:

• The document must be in writing and signed by the individual creating the directive (usually referred to as the “declarant” or “principal”).
• The Living Will must be signed in the presence of two witnesses who are not related to the declarant and who can attest to their sound mind and lack of duress or undue influence.

Potential Fees and Costs Associated with Creating a Living Will

There may be potential fees and costs associated with creating a Living Will in Illinois, depending on the method chosen to draft the document. Some individuals may choose to work with legal professionals, such as attorneys or estate planners, to create their Living Will, this option may incur legal fees. However, there are also resources available that offer Living Will templates (e.g., the Illinois Department of Public Health (IDPH) has a Living Will Declaration template) and guidance at little to no cost, including online services and nonprofit organizations dedicated to healthcare advocacy. A declarant should consider the associated costs and resources available when deciding how to proceed with creating a Living Will.

Available Resources for Creating a Living Will

For those seeking assistance in creating a Living Will in Illinois, there are various resources available. Online services and websites often provide customizable Living Will templates and guidance for completing the document. The IDPH has a free resources portal that provides information relating to making legal documents for health-related reasons, including Living Wills. The Illinois Department for Aging provides a similar portal for senior residents in the state.

Additionally, legal professionals can offer personalized advice and assistance in creating a Living Will that aligns with individual preferences and complies with Illinois state laws. Nonprofit organizations and healthcare providers may also offer resources and support for individuals seeking to create advance directives, including Living Wills, ensuring that they can make informed decisions about their healthcare preferences.

Preparing a Living Will: How to Write One in Illinois

When preparing a Living Will in Illinois, it is important to include certain required fields to ensure the document is legally valid. These typically include:

1. The Living Will should begin with identifying information, including the declarant’s full name, date of birth, and address.
2. The document should clearly state that it is a Living Will and the declarant’s intention to make healthcare decisions in advance.
3. It should specify the types of medical treatments and interventions the declarant does or does not want to receive in specific situations, such as life-sustaining treatments or resuscitation.
4. The Living Will must be signed by the declarant and witnessed by at least two individuals who are not related to the declarant and can attest to their sound mind and voluntary decision-making.

Tips for Completing a Living Will

Below are some tips for completing a Living Will form accurately and effectively:

• Reflect on what matters most to you. This can guide your decision regarding the care and treatment options to include your Living Will. Everyone has their desires and values when it comes to their end-of-life preferences. For some, the priority may be to extend life for as long as medically possible or to be present for significant family milestones. Others may have a definite point where they would prefer not to prolong their lives further.
• Speak to a doctor. Speaking to a healthcare professional can help you gain valuable insights into your current health status and potential decisions that you or your family may face. You can make inquiries to help you understand and think about your choices before putting them in writing.
• Clearly articulate your informed preferences regarding medical treatment and end-of-life care to ensure healthcare providers and loved ones understand your wishes.
• Regularly review and update your Living Will to reflect any changes in your health status or personal preferences.
• You should consider consulting a legal professional. Although it is not required, seeking guidance from legal professionals, such as attorneys specializing in estate planning or healthcare law, can ensure your Living Will complies with Illinois state laws and accurately reflects your wishes.
• Discuss your Living Will with your healthcare providers, family members, and appointed healthcare agent to ensure everyone understands your preferences and responsibilities.

Examples of how to properly execute and record a Living Will

Examples of properly executing and recording a Living Will include:

1. Sign and date the Living Will in the presence of two witnesses who also sign and date the document. Ensure all signatures are legible and clearly identify the individuals involved.
2. Provide copies of the Living Will to your healthcare providers, appointed health care agent, and trusted family members or loved ones. Keep the original document in a safe and accessible location, such as a home safe or with your estate planning documents.
3. While not required, some individuals may choose to register their Living Will with a state registry or healthcare provider to ensure it is easily accessible in the event of an emergency.

How Often Must I Update My Living Wills?

In Illinois, there are no specific legal requirements dictating how often a Living Will must be updated. However, it is advisable to review and update your Living Will periodically to ensure it accurately reflects your current healthcare preferences and circumstances. Factors that may necessitate updating a Living Will include changes in the principal’s health status, living situation, or personal values regarding medical treatment.

To update a Living Will in Illinois, individuals can create a new document that supersedes the previous version. This updated document should follow the same legal requirements for execution, including signing in the presence of witnesses who can attest to the individual's sound mind and voluntary decision-making. It's essential to clearly indicate that the new document revokes any prior Living Wills to avoid confusion.

Recommendations for Reviewing and Updating a Living Will Regularly

Recommendations for reviewing and updating a Living Will regularly include:

• Periodic Review: Consider reviewing your Living Will annually or whenever significant life events occur, such as changes in health status, marital status, or personal values.
• Consult Healthcare Providers: Discuss any changes in your medical condition or treatment preferences with your healthcare providers to ensure your Living Will reflects current medical realities.
• Family Discussions: Communicate with your family members or appointed healthcare agent about any updates to your Living Will, ensuring they understand your preferences and responsibilities.
• Legal Advice: Consider seeking guidance from legal professionals, such as attorneys specializing in estate planning or healthcare law, when updating your Living Will to ensure compliance with Illinois state laws and accuracy in reflecting your wishes.

Do I Need a Lawyer to Create a Living Will in Illinois?

You do not necessarily need a lawyer to create a Living Will in Illinois. While legal assistance can be beneficial, especially for complex estate planning needs or ensuring compliance with state laws, individuals can create a valid Living Will on their own. Illinois law does not mandate legal representation for creating a Living Will.

There are various resources available for individuals to create a Living Will without a lawyer’s assistance, including online templates, self-help guides, and nonprofit organizations dedicated to healthcare advocacy. These resources often provide step-by-step instructions and customizable forms to help individuals accurately document their healthcare preferences.

However, if you have complex healthcare needs, concerns about legal requirements, or wish to ensure your Living Will integrates seamlessly with your broader estate plan, consulting with a lawyer may be advisable. Ultimately, the decision to involve a lawyer in creating a Living Will depends on your individual needs and preferences.

What’s the Difference between a Living Will and a Medical Power of Attorney?

The primary difference between a Living Will and a medical power of attorney lies in how they address healthcare decisions.

A Living Will is a legal document that allows individuals to specify their preferences for medical treatment in advance, particularly in situations where they may be unable to communicate their wishes due to incapacitation. It outlines specific medical interventions and life-sustaining treatments the individual prefers.

On the other hand, a medical power of attorney, also known as a healthcare proxy or healthcare power of attorney, appoints a trusted individual to make healthcare decisions on behalf of the individual if they become incapacitated and unable to make decisions for themselves. The appointed healthcare agent has the authority to make medical decisions based on the individual’s best interests and any instructions provided in the Living Will, if applicable.

In essence, a Living Will provides specific directives regarding medical treatment preferences, while a medical power of attorney designates someone to make decisions on the individual’s behalf when they are unable to do so. Some individuals may choose to have both documents to ensure comprehensive healthcare decision-making and to provide flexibility in addressing various medical scenarios.

Can a Living Will Be Broken?

Yes, a Living Will can be revoked under certain circumstances in Illinois. The Illinois Living Will Act provides for the ways a Living Will can be revoked. A Living Will can be revoked by any of the following methods:

• By destroying the Living Will in a way that shows intention to cancel it. The document can be destroyed by burning, tearing, shredding, defacing, or otherwise rendering the document unreadable.
• By written statement signed and dated by the declarant or principal in the presence of witnesses indicating that the Living Will has been revoked.
• By expression of intent to revoke the Living Will orally or any other means of expression in the presence of witnesses.
• By creating a new Living Will that expressly states the revocation of any prior directives.

It is important to follow the proper procedures for revoking a Living Will to ensure that the revocation is legally valid and enforceable. Additionally, individuals should inform their healthcare providers, appointed health care agent (if applicable), and loved ones about the revocation to avoid any confusion or misinterpretation of their healthcare preferences.