Powers of Attorney: The Best Solution?

Yesterday I talked about how a living will (at least an Illinois living will) would not have resolved the Terri Schiavo case. Today I would like to discuss whether an Illinois health care power of attorney would do so.

The Illinois statutory health care power of attorney form allows me to name an agent (and successor agents) "to act for me and in my name (in any way I could act in person) to make any and all decisions for me concerning my personal care, medical treatment, hospitalization and health care and to require, withhold or withdraw any type of medical treatment or procedure, even though my death may ensue." You can also donate your organs via a health care power of attorney, but for purposes of our discussion, the keys to the document are the above language (from paragraph 1 of the form) and paragraph 2 of the form. Paragraph 2 contains the following three statements regarding life-sustaining treatment (note the lack of a reference to terminal condition):

I do not want my life to be prolonged nor do I want life‑sustaining treatment to be provided or continued if my agent believes the burdens of the treatment outweigh the expected benefits. I want my agent to consider the relief of suffering, the expense involved and the quality as well as the possible extension of my life in making decisions concerning life‑sustaining treatment.
I want my life to be prolonged and I want life‑sustaining treatment to be provided or continued unless I am in a coma which my attending physician believes to be irreversible, in accordance with reasonable medical standards at the time of reference. If and when I have suffered irreversible coma, I want life‑sustaining treatment to be withheld or discontinued.
I want my life to be prolonged to the greatest extent possible without regard to my condition, the chances I have for recovery or the cost of the procedures.

The third option is probably the easiest to understand: "keep me alive no matter what." The second option is, essentially, "keep me alive no matter what, with one exception (if I'm in an irreversible coma)." The first option is the most flexible (and the most potentially controversial). This option leaves the decision regarding life-sustaining treatment up to the agent, who is instructed to consider whether the burdens of such treatment outweigh the benefits, taking into account the relief of suffering, the expense involved, and quality of life. Needless to say, if you pick the first option, you need to make sure that your agent understands your wishes and agrees to carry them out.

Paragraph 2 also allows you to place limitations on your agent's ability to act. For instance, you could prohibit your agent from authorizing electro-convulsive therapy or amputation. More to the point, you can define exactly what you mean by "life-sustaining treatment" (for instance, would you view food and water as life-sustaining treatment?). I think that the paragraph 1 language cited above would authorize the withholding or withdrawal of a feeding tube (on the grounds that a feeding tube is a medical procedure); even so, my feeling is that the more detail you provide, the less chance there is of a dispute arising over your wishes.

You may also want to look into more in-depth, user-friendly alternatives to the Illinois statutory form (the Illinois Power of Attorney Act specifically authorizes the use of alternative forms as long as they meet certain requirements). One popular form that some of my clients have used is the "Five Wishes" document, which you can read about and download here.