Illinois Living Will Requirements

Illinois Compiled Statutes 755 ILCS 35, the Living Will Act, recognizes the fundamental right of a person to control decisions about their own medical care, including the decision to have death delaying procedures withheld or withdrawn during a terminal condition, and establishes an unambiguous procedure for exercising that right through a written declaration.

Section 2(h) defines 'terminal condition' as an incurable and irreversible condition such that death is imminent and the application of death delaying procedures serves only to prolong the dying process. This is the single trigger condition Illinois recognizes for a living will to take effect; there is no separate permanent unconsciousness category built into this Act.

The declaration must be signed by you, or by another adult at your direction, and witnessed by 2 individuals age 18 or older (Section 3(b)). A witness may not be entitled to any portion of your estate under intestate succession or any will or death effective instrument, and may not be directly financially responsible for your medical care (Section 3(e)).

You may revoke your declaration at any time, regardless of your mental or physical condition, by destroying or defacing it with intent to cancel, by a signed and dated written revocation, by an oral expression of intent to revoke made in front of a witness who signs and dates a confirming writing, or, for electronic declarations, by a qualifying electronic deletion. Revocation becomes effective once communicated to your attending physician.

A declaration has no force or effect for a patient diagnosed as pregnant by the attending physician, for as long as the physician believes the fetus could develop to the point of live birth if death delaying procedures continue to be applied.

A physician or health care provider who in good faith and under reasonable medical standards withholds or withdraws death delaying procedures under a declaration that appears to comply with the Act is protected from civil or criminal liability and from a finding of unprofessional conduct. Providers may presume a declaration is valid absent knowledge to the contrary, though the patient's own contemporaneous wishes always control over the declaration.

Federal law requires Medicare and Medicaid participating hospitals, nursing homes, and other facilities to inform patients in writing of their right under Illinois law to make an advance directive, including a living will stating their own treatment wishes.

Artificial nutrition and hydration falls within the Act's general 'death delaying procedure' definition, but Section 2(d) adds a specific limit: nutrition and hydration may not be withdrawn or withheld if doing so would result in death solely from dehydration or starvation rather than from the existing terminal condition.

Illinois law preserves your attending physician's ability to provide medication, sustenance, or any medical procedure the physician considers necessary for your comfort care, even after you have directed that other death delaying procedures be withheld or withdrawn.

This section of the separate Powers of Attorney for Health Care Law requires a health care provider to comply with a health care agent's decisions, subject to the provider's right to give comfort care or pain relief, or to arrange a transfer if unwilling to comply. It governs the power of attorney for health care document, not your living will directly; the two remain separate instruments under separate statutes in Illinois.

Federal HIPAA regulations govern how your health care agent or physician can access and share your protected health information in connection with carrying out your declaration or a related power of attorney for health care.

Section 5-5 of the Illinois Anatomical Gift Act addresses who may execute an anatomical gift of a person's body or organs, including a priority order of persons who may authorize a gift when the person has not made one during life.

Section 9's general provisions confirm that a declaration validly executed in another state, in compliance with that state's law or Illinois law, is given effect under this Act. This section also states that withholding or withdrawing death delaying procedures under the Act does not constitute suicide, does not affect life insurance, cannot be required as a condition of insurance or care, and does not condone mercy killing.

If you become subject to guardianship, Section 11a-17 of the Probate Act requires your guardian of the person to make health decisions using substituted judgment, the decision you would have made if able, and otherwise your best interest. This applies alongside, not instead of, a living will that remains in effect; a validly executed declaration still controls your treatment wishes for a terminal condition even if a guardian has also been appointed.

The Mental Health Treatment Preference Declaration Act (755 ILCS 43) is its own separate declaration, letting a person state preferences about psychotropic medication, electroconvulsive treatment, and short term admission to a mental health facility (capped at 17 days). It is not part of the Living Will Act and is not folded into your terminal condition declaration; it requires its own separate document with its own witnesses.

Federal regulations implementing the Patient Self-Determination Act require Medicare and Medicaid participating providers to maintain written policies on advance directives and to provide patients with information about their rights under Illinois law, including the right to execute a living will.

A severability provision within the Living Will Act ensures that if any section or application of the Act is held invalid, the remainder of the Act and its other applications remain in effect.

If your attending physician is unwilling to comply with your declaration, Illinois law does not let the physician simply disregard it. The physician must notify you, or if you are unable to act, the person or persons in the priority order set out in Section 3(d), that they are unwilling to comply, and take the necessary steps to allow transfer to another physician willing to honor your declaration. A physician who does record a terminal condition determination in good faith is presumed to be acting properly and is immune from liability absent a showing of unreasonable professional care.