Fact Sheet Advance Directives

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E Q Y U A L I T from Equip for Equality’s Legal Advocacy Program EFE FACT SHEET – Mental Health

ADVANCE DIRECTIVES IN ILLINOIS

Statutory Reference: 755 ILCS 45/4-1; 755 ILCS 43/1-43/75

There may be times in a person’s life when he or she lacks the mental capacity to make decisions about his or her health care. An Advance Directive is a legal document that anyone can prepare describing the treatment and services that he or she wants to receive at those times or gives the authority to make these decisions to another individual. Standard Advance Directive forms, including Illinois Statutory Short Forms, are available at Equip for Equality’s website, www.equipforequality.org. The statutory forms do not have to be used; any similar form will suffice. Advance Directives should always be appropriate to a person’s situation. No one should execute an Advance Directive without first fully understanding what powers the document will take away and under what circumstances the Advance Directive will take effect. No one, including hospital or facility staff, doctors, or insurers, can force a person to execute any Advance Directive. Because Advance Directives are legally binding documents, any individual who wants to execute an Advance Directive should consider consulting an attorney.

TYPES OF ADVANCE DIRECTIVES In Illinois there are two main types of Advance Directives used for mental health care purposes:  Power of Attorney for Health Care  Mental Health Treatment Preference Declaration

(Note: There are also other advance directives used specifically for end of life medical decisions and for management and disposition of property).

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POWER OF ATTORNEY FOR HEALTH CARE Statutory Reference: 755 ILCS 45/4-1 The Power of Attorney for Health Care is the broadest of all the Advance Directives in Illinois. It is created when a person executes a document giving another person, such as a family member or friend, broad powers to make health care decisions in the event that the former becomes unable to make decisions for him or herself. The person signing the form giving up the power to make these decisions is called the principal and the person chosen to make decisions for the principal is called the agent. The agent cannot be the principal’s doctor or other health care provider administering care or treatment to the principal. A backup agent (successor agent) can be named to act if the first agent dies, becomes incompetent, resigns, is unavailable, or refuses to become the principal’s agent. The principal’s signature on a Power of Attorney for Health Care must be witnessed (a person signs the document swearing that the principal signed the document). A Power of Attorney for Health Care may grant to the agent any or all powers that the principal has to consent to, refuse, or withdraw any type of medical treatment, including mental health treatment. If a health care provider is unwilling to comply with a decision of the agent regarding treatment, the agent is responsible for transferring the principal to another provider. The directions given by the principal in the Power of Attorney for Health Care will help guide the agent in making the principal’s health care decisions according to the principal’s wishes. The Power of Attorney for Health Care may be amended or revoked, regardless of the principal’s mental or physical condition, as follows:  Amendments (changes) to a Power of Attorney must be in writing.  A Power of Attorney for Health Care may be revoked in the following ways:  In writing;  By destroying the document; or  Verbally, so long as a witness, 18 years of age or older, signs and dates a written confirmation that such expression of intent was made.

Whenever a Power of Attorney for Health Care is amended or revoked, it is best to inform the agent of the changes. Unless the document states otherwise, the Power of Attorney for Health Care is effective from the time it is executed until the death of the principal (or beyond death, if an autopsy, anatomical gift, or disposition of remains is authorized).

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MENTAL HEALTH TREATMENT PREFERENCE DECLARATION Statutory Reference: 755 ILCS 43/1-43/75 A Mental Health Treatment Preference Declaration covers three aspects of mental health treatment:  Admission to a mental health facility for up to 17 days;  Psychotropic Medication; and  Electroconvulsive Therapy (ECT).

The principal can state specifically what he or she wants in terms of mental health treatment, or can choose someone, called the attorney-in-fact, to make these decisions. In a Mental Health Treatment Preference Declaration, the attorney-in-fact must act consistently with the express desires of the principal unless the principal’s wishes are not expressed in the Declaration and are not otherwise known by the attorney-in-fact. In this case, the attorney-in-fact must act in what he or she, in good faith, believes is the best interest of the principal. In addition, the principal’s wishes do not have to be followed when they are contradicted by a court order or in case of an emergency that endangers the life or health of the principal. The following individuals cannot be named as attorney-in-fact:  The attending physician or mental health provider or an employee of the physician or provider, if the physician, provider, or employee is not related to the principal by blood, marriage, or adoption.  An owner, operator, or employee of a health care facility in which the principal is a patient or resident, if the owner, operator, or employee is not related to the principal by blood, marriage, or adoption.

Two witnesses must sign the Declaration. The following individuals may not be witnesses:  The attending physician or mental health service provider or a relative of the physician or provider;  An owner, operator, or relative of an owner or operator of a health care facility in which the principal is a patient or resident; or  A person related to the principal by blood, marriage, or adoption.

The Mental Health Treatment Preference Declaration only becomes effective if two physicians determine that the principal is not mentally capable of making treatment decisions (the principal can name one of these physicians in the Declaration). Mental Health Treatment Preference Declarations automatically expire in three years (if not earlier revoked) unless at the end of the three-year period the Declaration is in effect because the person is not capable of making treatment decisions. It remains in effect until the principal becomes capable of making treatment decisions as determined by two physicians.

of 4 059459f211ac2608f42cfe507c51503e.doc ALERT Once a Mental Health Treatment Preference Declaration is written, signed, and witnessed, it may be canceled only in writing and only if two physicians determine that the principal is then able to make treatment decisions. Since a Power of Attorney for Health Care can cover mental health treatment and is more easily cancelled, many people prefer it to the Mental Health Treatment Preference Declaration.

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E Q Y U A L I T DO YOU HAVE A QUESTION? Contact Equip for Equality (all services are free of charge): 800.537.2532 (voice) or 800.610.2779 (TTY) [email protected] www.equipforequality.org

This resource material is intended as a guide for people with disabilities. Nothing written here shall be understood to be legal advice. For specific legal advice, an attorney should be consulted. Equip for Equality, an independent nonprofit organization, is the Illinois state Protection & Advocacy System whose mission is to advance the human and civil rights of children and adults with disabilities. This publication was made possible by a grant from the Center for Mental Health Services. The contents of this publication are the sole responsibility of the authors and do not represent the official views of the Center for Mental Health Services. ©Equip for Equality, 2005 Revised: 03/15/2006