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Kevin O'Flaherty

In this article, we’ll discuss what an advance directive is, the different types of advance directives, and how advance directives can affect a guardian’s authority over healthcare decisions. 

Turning eighteen is a big milestone for most people. It typically signals the end of high school and the beginning of college, the legal right to vote, serve on a jury, buy tobacco and cigarettes, and the presumption that you are competent to make legal and healthcare decisions for yourself. That also means in the event that you become mentally incapacitated there may be a question mark over who and how decisions are made regarding your healthcare needs. Without a guardianship adjudication, advance planning, or a mental health court proceeding next steps regarding your medical treatment may be uncertain. 

Given a choice between advance planning, a guardian making the decision, or involuntary litigation to determine your healthcare needs advance planning is usually the way to go. Advance planning gives the person who is doing the planning, known as the principal in an advance directive, control over what type of care or decision will be made, resulting in faster care, the greater likelihood for improvement, and less financial concern. Advance planning and creating advance directives can also give a measure of relief in the form of exercising self-management over crucial decisions, rather than being left to the whims of chance. 

What is an Advance Directive?

Advance directives are written statements by you that dictate how you want a medical decision to be made by you in the event that you can’t make it yourself. Legally, advance directives are very powerful. Once made, an advance directive is essentially a contract that even a court-appointed guardian cannot go against, even if the principal makes a directive that is disagreeable.

What are the Different Categories of Advance Directives?

  • Healthcare power of attorney - You choose someone to make medical decisions on your behalf in the future if you are no longer able to make the decisions. In this legal arrangement, you are the “principal” and the person you choose to make the decisions is the “agent.” The agent’s power over your medical care is broad, but can be dictated by any stipulations you place in the original legal agreement. You can change the agent, cancel the directive, or modify it in any way at any time.
  • Living Will - A living will is another way for you to tell your health care professional how to direct your care, but it only comes into play with directing death delaying treatment in terminally ill patients who are unable to state their desired care. There are some stipulations on the health care directives in living wills, such as if you are pregnant and can go through a live birth or withdrawing food and water if it would be the only cause of death.
  • Mental Health Treatment Preference Declaration - In the case of mental or physical incapacitation this declaration lets you state whether you would like to receive certain types of treatment associated with mental health conditions, such as electroconvulsive treatment (ECT) and also allows you to state your preference for or against the admittance to a mental health facility for up to 17 days of treatment. Like other directives, you can choose someone to make the decisions for you and any directives under the agreement are legal for up to 3 years.
  • Do Not Resuscitate (DNR)/Doctors Order for Life-Sustaining Treatment - This directive deals with directions on how to handle life-sustaining or life-saving medical decisions. 

Guardians’ Limits on Advance Directives

While guardians have a lot of power over the healthcare decisions for their assigned ward there are certain limits on the decisions they have authority over. 

  • Ward Who Can Voice His or Her Opinion - When the ward is still able to voice his or her opinion over the healthcare decision the guardian cannot consent to treatment if the ward objects. But the ward may still petition for involuntary treatment or involuntary admission, based on the stipulations under Mental Health Code 405 ILCS. There are a number of stipulations under this health code, including timeframes for various treatments, but the primary stipulation is that if the ward refuses treatment, services will be not be given unless the services are necessary to prevent serious or life-threatening harm to the ward.
  • Ward’s consent - A ward can still consent to voluntary treatment or admission even when under the plenary guardianship of their person. A guardian can consent to treatment for different therapies, including electroconvulsive therapy and psychoactive drug treatment for a “non-objecting ward”, pursuant to mental health code 405 ILCS.
  • “Agent Versus Guardian” - In the scenario of an advanced directive such as “durable power of attorney for healthcare” or “declaration of mental health treatment” the power of the agent will typically supersede that of the guardian. Normally, the principal would have laid out the directive for the named agent, and this limits the decision making authority for the guardian under the given stipulation. In this scenario, the agent essentially stands in the shoes of the principal, making the decision regardless of the guardian’s input.


What authority a guardian has over healthcare decisions for their wards is ultimately determined by what advance directives were written and authorized by the ward or principal, and if those advance directives are not legally out of date. If there are no advance directives present a guardian will likely make most, if not all the healthcare decisions for the ward.

Disclaimer: The information provided on this blog is intended for general informational purposes only and should not be construed as legal advice on any subject matter. This information is not intended to create, and receipt or viewing does not constitute an attorney-client relationship. Each individual's legal needs are unique, and these materials may not be applicable to your legal situation. Always seek the advice of a competent attorney with any questions you may have regarding a legal issue. Do not disregard professional legal advice or delay in seeking it because of something you have read on this blog.


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