Incapacity and healthcare directives
Date: 2026-06-13
Educational overview only; not legal or medical advice.
Terminology
| Term | Meaning |
|---|---|
| Advance directive | Umbrella: any written instruction for future medical care when you cannot decide |
| Healthcare POA / proxy | Names an agent to make medical decisions on your behalf |
| Living will | Your written treatment preferences (end-of-life, life-sustaining care) — not a property will |
| Combined form | Some states merge POA + living will into one "advance healthcare directive" |
| POLST / MOLST | Physician orders for seriously ill patients; supplements directives for EMS/facility use |
| DNR / DNI | Physician orders in medical record; separate from property estate documents |
Healthcare POA vs living will
- Living will: you speak directly about specific treatments (CPR, ventilation, tube feeding, dialysis, comfort care, organ donation).
- Healthcare POA: you empower an agent for judgment calls, emergencies, and situations your living will does not address.
- Together: living will sets baseline; agent applies your values to the unexpected.
Illinois specifics
Illinois treats health care POA and living will as separate statutes:
| Document | Statute | Witnesses | Scope |
|---|---|---|---|
| Statutory health care POA | 755 ILCS 45/4-10 | One | Agent decides when you lack capacity |
| Living will | 755 ILCS 35 | Two (physician cannot witness) | Terminal condition; death-delaying procedures |
| Mental health treatment preference | Separate IDPH form | Per form | Psychiatric treatment preferences |
| Illinois POLST | Practitioner orders | Physician completes | Serious illness; EMS visibility |
If both health care POA and living will exist, the agent generally decides unless unavailable. Financial matters use a separate Illinois durable POA for property (755 ILCS 45 Article III) — see financial-power-of-attorney.md.
Health Care Surrogate Act
When no valid advance directive exists, Illinois law may authorize a default surrogate decision-maker hierarchy for incapacitated patients without an agent. Having your own POA avoids relying on default surrogates.
Operational checklist
- Execute state-appropriate forms while you have capacity.
- Name primary and successor agents; confirm willingness.
- Discuss values and living-will choices with agent and family.
- Give copies to agents, primary care physician, and hospital-on-admission.
- Carry wallet card with agent name and document location.
- Review after diagnosis, divorce/remarriage, or every ~10 years.
Related notes
- estate-planning-document-checklist.md
- financial-power-of-attorney.md
- wills-and-pour-over.md
Sources
- mayoclinic-living-wills-advance-directives
- il-dph-advance-directives