Mental Health Treatment Preference Declaration:

The Mental Health Treatment Preference Declaration Act, 755 ILCS 43/1, et seq., allows an adult to state their preference or instruction regarding mental health treatment. This may include consent or refusal of mental health treatment.

The principal may appoint an attorney in fact or agent to make mental health decisions if the principal becomes incapable of doing so. The attorney in fact does not have the authority to make mental health decisions if the principal is capable of doing so.

Living Will:

The Living Act, 755 ILCS 35/1, et seq., allows an adult to direct as to artificially delaying death in cases of terminal illness (incurable and irreversible condition). This document has been largely superseded by the power of attorney for healthcare, which is larger in scope.

Death delaying procedure is defined in relative part "as any medical procedure or intervention which . . . in the judgment of the attending physician would serve only to postpone the moment of death. . . Nutrition and hydration shall not be withdrawn or withheld from a qualified patient if the withdrawal or withholding would result in death solely from dehydration or starvation rather than from the existing terminal condition."

In contrast, the power of attorney for healthcare is a much broader document with the broadest election stating the following:

"I do not want my life to be prolonged nor do I want life-sustaining treatment to be provided or continued if my agent believes the burdens of the treatment outweigh the expected benefits. I want my agent to consider the relief of suffering, the expense involved and the quality as well as the possible extension of my life in making decisions concerning life-sustaining treatment."

Because a conflict could result in issuing a power of attorney for healthcare and a living will, it may be appropriate to execute only one of these documents. Most clients prefer the healthcare power of attorney, which gives the broadest discretion possible to their agent.