McGrath Law Office, P.C. has the privilege to help clients with a wide variety of legal problems.  To help show our clients the many different ways we can help you, our website will spotlight a particular area of the law each quarter.  This page will be continually updated with new and informative information from an area of the law in which our attorneys practice.

LIVING WILLS v. HEALTH CARE POWERS OF ATTORNEY

You may believe that  a Living Will is sufficient for all of your health care planning needs. However, a Living Will only addresses a very narrow circumstances.  In the State of Illinois, a Living Will addresses only the withdrawal of life support. It does not address treatment, medication, and residential placement. The durable power of attorney for health care is a more comprehensive planning method for health care contingencies. Following is a brief explanation of these advance directives.

Living Will

A living will is a document that is signed, dated, and witnessed in compliance with the Illinois Living Will Act. When properly executed, a living will enables you to directly say, not through an agent or surrogate, your desires with respect to the use of life-sustaining procedures during a terminal illness. A living will generally contains a provision that permits a person to die naturally under the following circumstances: (1) the person has an incurable and irreversible injury or illness that is determined by the attending physician to be a terminal condition; and (2) death is imminent without the implementation of death-delaying procedures.

The Illinois Living Will Act states that food and water shall not be withdrawn or withheld if doing so would result in death solely from dehydration or starvation rather than from the existing terminal condition. This provision is seen by many as unclear.  The precise circumstances under which a feeding tube can be withdrawn remain unclear. Consequently, health care providers proceed conservatively and many refuse to terminate tube feeding based on a living will, citing the statutory prohibition.

Because the living will has a very narrow purpose and application, it is not the instrument of choice for most people. However, if you fall into one of the following categories, the living will can be an appropriate advance directive:

1. Persons in the final stage of a terminal illness for whom death- delaying procedures may soon be necessary;

2. Persons who wish to relieve family members of the burden of terminating life-sustaining treatment; or

3. Persons who cannot decide whom to name as their agent under their durable power of attorney.

Durable Power of Attorney for Health Care

A "durable" power of attorney is one that is effective until your death unless you (the principal) revoke it or amend it sooner. A durable power of attorney for health care permits you to delegate health care decisions to a trusted person (your agent) in the event that you become incapacitated and are unable to make your own health care decisions. The Durable Power of Attorney Act sets forth a statutory short form power of attorney for health care, but non-statutory forms may also be drafted. The statutory short form requires the signatures of the principal and one witness and a notary.  The statutory short form was recently revised.  The new statutory short form became the standard statutory form as of July 1, 2011.

The durable power of attorney for health care can do everything a living will can do and much more. For example, the agent may be given broad authority to order the withholding of death-delaying procedures, including tube feeding and hydration, without regard for statutory prohibitions under the Illinois Living Will Act. Your agent can also be given authority to make other health care decisions for you, including admission to or discharge from a hospital or long-term care facility, medical consent, and anatomical gifts. Agents may also be specifically forbidden from making certain decisions on your behalf. With our counsel you can tailor the durable power of attorney to your wishes.

A durable power of attorney for health care becomes effective upon execution unless otherwise specified in the document. You can make the power of attorney effective at a future date or upon the happening of a certain event (such as a your doctors diagnosis of disability). The durable power of attorney for health care may be revoked or amended at any lime regardless of the mental or physical condition of the principal, but only by using one of the methods described in the statute. 

Failure to Execute an Advance Directive

If no advance directive is executed, the Illinois Health Care Surrogate Act allows an attending physician to recognize a surrogate for those patients who lack competence or decisional capacity. The surrogate is empowered to make decisions about life-sustaining treatment on the patient's behalf. The biggest challenge to the Act is that it empowers a class of decision makers.  If the class of decision makers cannot agree, the Act does not allow for a decision to be made.  For example, if a health care decision needs to be made on behalf of a widow, her children would be empowered to make that decision by the Act.  All of the children would have to unanimously agree for their decision to be respected under the Act.

While the Illinois Health Care Surrogate Act offers families an alternative to a court proceeding, execution of a living will or durable power of attorney will provide you with more control and flexibility in making decisions about your medical treatment. To spare your loved ones the uncertainty and anguish of a statutory surrogacy, contact us for counseling about the use of a living will or durable power of attorney for health care.

SUMMER SPOTLIGHT

For Summer 2011, our spotlight shines on one program created for the benefit of those who have served our country during times of war.  The Aid & Attendance program is a little known program which is available to help our veterans who require long term convalescent care.

AID & ATTENDANCE PROGRAM

The Aid and Attendance program offers a special pension benefit to qualifying veterans or the qualifying surviving spouse of a veteran.  To be eligible, the veteran must have served 90 continuous days, at least one of which was during an eligible period of war.  Below is a chart summarizing the eligible periods of war:

The applicant must also have limited net worth.  The net worth test is a "soft" standard, as opposed to a hard and fast cap like Medicaid and other programs use.  The net worth test looks to whether the assets of the veteran or the surviving spouse of the veteran would be sufficient to sustain the individual for life.  

The applicant must also satsify an income test.  The income test considers monthly income from all sources less unreimbursed recurring medical expenses.  One of the primary unreimbursed medical expenses that affects many seniors is the cost of assisted living or nursing home care. 

Finally, the applicant must have a documented need for the constant aid and attendance of another person.  The person need not necessarily be bedridden.  The applicant must however have medical ecvidence sufficient to establish that he or she cannot function adequately without the aid and attendance of another.   

If all of the foregoing conditions are met, the applicant may be eligible to receive an Aid & Attendance pension benefit.  The amount of the pension varies depending upon the individual circumstances of the applicant.  The maximum available benefit is $2,540 per month for two married veterans.

The Aid and Attendance program can be a tremendous blessing for families in need.  Unfortnately though, the program is not well known, and many who could benefit are just not aware the program exists.  NBC Nightly News featured the program in a piece that aired on its show in 2010.  

Your family attorney can help you plan for potential Aid & Attendance benefit eligibility.  Careful planning today can ensure that if the need arises, you will be able to satisfy the income and asset tests.  Be sure to ask your attorney whether he or she has been accredited by the VA to assist you with VA benefit matters.  Only accredited VA attorneys can assist with the preparation of applications for veterans benefits.

For more information, contact Attorney Pat McGrath with McGrath Law Office, P.C.