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A person’s right to direct their own medical care is paramount to their feeling of autonomy. A person is presumed competent to make decisions for themselves once they obtain the age of eighteen.   When a person becomes incapacitated and is no longer competent, and they have not previously prepared an advanced directive such as a Power of Attorney for Health Care or a Declaration for Mental Health Treatment, a family member or friend would be required to obtain a court order appointing them as a guardian of the person in order to direct their medical care. (Unless the Health Care Surrogate Act applies which is briefly referred to below)

In Illinois, we have written laws covering powers of attorney and declaration for mental health treatment.  This article will review The Mental Health Treatment Preference Declaration Act 755 ILCS 43/ and how it differs from the Illinois Power of Attorney for Healthcare statute.  755 ILCS 45/.


What is the Purpose of Mental Health Laws in Illinois?

The purpose of these laws is to allow a person while they are competent to direct their medical treatment or provide for an agent to step into their shoes to make decisions for them.    The Mental Health Treatment Preference Declaration Act specifically provides that there are three types of mental health treatment that a person can affirm or decline.  The Mental Health Treatment Preference Declaration form also differs from the Illinois Statutory Power of Attorney for Health Care form in that it does not require that the person name an “agent” to make decisions for them when they are unable.  The mental health declaration also has an expiration date of three years from the date of signing and can only be revoked if a physician signs the form confirming that the person is not “incapable.”  755 ILCS 43/75.

To review, the differences between the Mental Health Treatment Preference Declaration Act and the Illinois Power of Attorney for Healthcare Act are as follows:

Declaration Only Covers Three Types Of Treatment

  • psychotropic medication.
  • electroconvulsive therapy (ECT).
  • admission to and retention in a healthcare facility for mental health treatment.

A power of attorney for healthcare covers a wide range of personal decisions regarding health care and treatment.  755 ILCS 45/

Declaration Does Not Require The Appointment Of An Agent

  • it is not required to name an “attorney-in-fact.”

A power of attorney for healthcare requires the appointment of an “agent” or “attorney in fact” 755 ILCS 45/

Declaration Has A Statute Of Limitation Or Expiration Date

  • The declaration is only good for three years from the date of signing.
  • A declarant must execute a new declaration at the end of the three-year period.

A power of attorney for healthcare has no expiration date and is valid for the duration of the life of the principal.  755 ILCS 45/

Declaration Cannot Be Easily Revoked

  • a principal must first obtain a physician’s written statement that he or she is “not incapable” before the declaration can be revoked in whole or in part   755 ILCS 43/50, 43/75.

A power of attorney for health care may be revoked at any time and there are no conditions needed to revoke the document.  Even if the principal is of “unsound mind and memory” they may tear up or throw away the document.  755 ILCS 45/

Therefore, a person does have the right to refuse mental health treatment.  The difficulty arises when it is determined that a person no longer has “decisional capacity”.  Although a person struggles with mental health issues, they may still have capacity to make decisions for themselves.  “Decisional capacity” is defined in the Health Care Surrogate Act as “the ability to understand and appreciate the nature and consequences of a decision regarding medical treatment or forgoing life-sustaining treatment.  755 ILCS 40/10. The determination as to whether the person has “decisional capacity must be made by a physician.  755 ILCS 40/20(c).  People who suffer from mental health issues often do not keep in contact with family or medical providers.  

If a person has prepared advance directives or powers of attorney regarding their future medical health care needs, then family and friends will be able to assist them in obtaining or refusing the medical treatment offered to them.

August 2, 2022
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