living will vs power of attorney

Illinois Living Wills Explained | What is a Living Will?

Video by Attorney Kevin O'Flaherty
Article written by Illinois & Iowa Attorney Kevin O'Flaherty
Updated on
November 1, 2019

What is a living will? In this article we will explain living wills in Illinois and discuss using a Living Will to provide for end of life instruction.  This article is the fifth in a series of nine articles explaining the Eight Goals of a Good Estate Plan.  

In our previous article, we discussed using a Healthcare Power of Attorney to appoint an agent to make healthcare decisions on your behalf if you are mentally incompetent.  A Living Will is a tool used to make the decision, while you are still mentally competent, to terminate life-sustaining treatment in the event that you are in an irreversible vegetative state.  The Living Will takes this decision out of the hands of your healthcare agent.

​If you have a Living Will in your medical file, your physician is instructed to terminate life-sustaining treatment if you are in a vegetative state and the doctor does not believe that there is any continued purpose to life-sustaining treatment other than keeping you perpetually in that vegetative state.  Essentially, the doctor will terminate life support if he or she does not believe there is a realistic chance of bringing you out of a coma.  In the absence of a Living Will, your healthcare agent or next of kin (in the absence of a Healthcare Power of Attorney) would be charged with making the decision of whether to continue life-sustaining treatment.

Whether to include a Living Will in your estate plan is a purely personal choice.  It is not something that I advise either for or against.

‍The reasons that my clients typically choose to execute a Living Will are:

  • to avoid saddling their loved ones with the emotional burden of terminating life sustaining treatment;
  • they are strongly opposed to be kept in a vegetative state for an extended period of time due to their loved ones’ unwillingness to let go; and
  • they wish to avoid saddling their loved ones with the cost of extended life-sustaining treatment.

As an alternative to a living will, many clients will simply leave either verbal or written instruction as to their wishes with their healthcare agents.  There is even a portion of the Healthcare Power of Attorney that allows you to provide this instruction, while leaving the ultimate legal decision-making power in your loved ones’ hands.

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