Living will requirements in Illinois

Which document is this, really

Illinois asks you to think about two separate documents, not one. The first is the Declaration, created by the Illinois Living Will Act, a written statement of the treatment you do and do not want once your attending physician has determined you have a terminal condition. The second is the Power of Attorney for Health Care, created by a different statute entirely, the Illinois Power of Attorney Act, for naming the person who can make health care decisions for you. The person you name in it is your agent.

Illinois keeps the two apart rather than folding them into one form. The Living Will Act prints a model Declaration in its own text and says the declaration “may, but need not,” be in that form, so your own wording is fine as long as it meets the Act’s requirements. The Power of Attorney for Health Care has its own statutory short form as well. Illinois’s text points two ways about a version you write yourself: the witness section says every health care agency has to bear a witness’s signature, while the short form’s own notice says a document you write instead of using the form need not be witnessed. Get the one witness either way and the question never comes up.

This is exactly the pairing Myend’s Healthcare Directive prepares for Illinois: a Declaration for your wishes, and a Power of Attorney for Health Care for your agent, each signed the way its own statute requires.

Who can make an Illinois living will

The Declaration is open to anyone of sound mind who has reached the age of majority, eighteen in Illinois, or who has obtained the status of an emancipated minor under the state’s Emancipation of Minors Act. That emancipated-minor route is written into the Living Will Act itself, not implied from somewhere else.

The Power of Attorney for Health Care does not set a separate numeric age for the person signing it, the principal. Illinois’s general rule that eighteen is the age of legal capacity for all purposes applies there instead.

Signing it so it counts

Illinois runs two separate signing rules, one for each document, and neither one ever accepts a notary. Do not borrow one document’s rule for the other: the number of witnesses is different, and so is the list of who cannot serve as one.

The Declaration

1. 1You sign

   You sign the Declaration, or direct someone else to sign it at your direction, in your presence.

2. 2Two witnesses sign

   Two individuals, each 18 or older, witness your signature. The Living Will Act sets that age floor and asks nothing else of them.

3. 3Who cannot witness

   Nobody, as far as the operative section goes. Illinois’s Living Will Act names no disqualified category of witness for the Declaration itself, only the 18-or-older floor. The state’s own optional printed form asks its witnesses to attest that they are not an heir, a beneficiary under your will, or directly financially responsible for your medical care, but that language belongs to the form, not to a separate rule the Act imposes if you draft your Declaration in different words.

The Power of Attorney for Health Care

Naming your agent is a separate signing, on its own paper, and Illinois asks for less by way of witnesses but more by way of who qualifies. The statute requires only one witness, 18 or older, and offers no notary option in its place. The statutory short form says so plainly: there is no need to have the form notarized.

1. 1You sign

   You sign the Power of Attorney for Health Care, or direct someone to sign for you in your presence.

2. 2One witness signs

   A single adult witness signs to confirm they watched you sign. Illinois asks only one witness here, half of what the Declaration requires.

3. 3Who cannot witness

   Illinois narrows the field for that one witness, and it does it with a closed list rather than a general rule. Out: your own attending physician, advanced practice registered nurse, physician assistant, dentist, podiatric physician, optometrist or psychologist, and a relative of any of them; the owner or operator of the health care facility where you are a patient or resident, and a relative of that owner or operator; your parent, sibling or descendant, or the spouse of one, whether that relation runs to you or to your named agent or successor agent; and the agent or successor agent themselves. The facility bar reaches an operator’s directors and executive officers, and the statute says in terms that it does not reach the facility’s other staff, naming nurses, chaplains and social workers who are not owners.

Naming your agent

The Power of Attorney for Health Care is where you name your agent, the person who makes health care decisions for you once the document takes effect. Illinois’s restriction on who can be your agent is narrower than its rule about who can witness the signing. Your attending physician cannot serve as your agent, and neither can any other health care provider currently treating you.

The statute draws that line carefully: a physician or other licensed provider who is not currently administering your care can still serve as your agent, even though they are licensed, certified or otherwise permitted to practice. It is the treating relationship that disqualifies someone, not the license itself. Your agent also has to be at least 18: Illinois writes that into its definition of a health care agent, and the statutory form’s notice repeats it for a document you write yourself.

Within that limit, once your Power of Attorney for Health Care takes effect, your agent steps into the health care decisions you would otherwise make for yourself.

When it takes effect

Your Declaration becomes operative once your attending physician has determined that you have a terminal condition and recorded that determination in your medical record. From that point, the Declaration governs the treatment decisions it addresses.

Your Power of Attorney for Health Care carries a default of its own. Illinois’s statutory short form asks you to check one box, and if you check none, the form applies the first option: your agent decides only when you cannot decide for yourself, and the physicians treating you determine when that is. A physician may make that finding only where you actually lack decisional capacity as the Health Care Surrogate Act defines it. A second box starts your agent’s authority immediately instead, so if that is what you want, you have to say so on the form.

If you are pregnant

Once your attending physician diagnoses you as pregnant, Illinois sets your Declaration aside for as long as, in that physician’s opinion, it remains possible for the fetus to develop to the point of live birth with continued life-sustaining treatment. When your physician’s opinion changes, your Declaration applies again. The rule belongs to the Living Will Act and speaks to the Declaration; the exact wording is in the sources list below.

Changing or cancelling it

You can revoke your Declaration in any of four ways: by obliterating, burning, tearing or otherwise destroying or defacing it with the intent to cancel it; by a signed and dated written revocation, on paper or electronic; by an oral or other expression of your intent to revoke it in the presence of a witness 18 or older, who then signs and dates a writing confirming that you said it; or, if your Declaration is electronic, by deleting it in a way that shows you meant to revoke. Whichever method you use, the revocation takes effect once it reaches your attending physician, who records the time, date and place of that notice in your medical record.

The Power of Attorney for Health Care has its own revocation section, and it reads almost identically: destroy or deface the document meaning to revoke it, sign and date a written revocation, say so in front of a witness 18 or older who signs and dates a confirming writing, or, for an electronic health care agency, delete it in a way that shows the same intent. You can also amend it at any time by a written amendment you sign and date. One thing to know if you already have one: Illinois’s statutory short form opens with a line saying it revokes all previous powers of attorney for health care, so signing a fresh copy of the state form cancels the older one. Anyone other than your agent who is told of a revocation or amendment has to make reasonable efforts to pass it on to the agent.

Making sure it is found

A Declaration validly signed under another state’s requirements, or under Illinois’s own, is honored here under the Living Will Act itself. That reciprocity rule is written into the Declaration’s own statute and speaks to the Declaration alone.

Beyond that, give copies of both documents to your agent, your physician, and the hospital you are most likely to use, and keep the signed originals somewhere your family knows to look. A Declaration nobody can find at the moment it matters works the same as no Declaration at all.

This is not a POLST

A POLST-style medical order is a different kind of document from either your Declaration or your Power of Attorney for Health Care. A clinician signs a POLST-style order together with someone who is already facing serious illness, and it becomes a set of standing medical orders meant to travel with that person between hospital, nursing facility, home and ambulance. A Declaration and a Power of Attorney for Health Care, by contrast, are something you put in place in advance, for a future you cannot yet see. Myend prepares the Declaration and the Power of Attorney for Health Care. It does not, and cannot, produce a POLST-style medical order, because that has to come from a treating clinician.

What is different about Illinois

One Illinois law asks for two witnesses, the other asks for one, and neither ever accepts a notary in place of either.

Most two-document states give both papers a shared choice: witnesses or a notary, pick one. Illinois does not offer a notary at all, on either document, and it does not split evenly either. The Declaration wants two witnesses and disqualifies none of them beyond the basic age floor. The Power of Attorney for Health Care wants only one witness, and then narrows who that person can be further than almost anything else on this page: not a treating provider, not a facility owner, not a close relative of you or of your agent, and not the agent themselves.

Illinois is also unusual in the other direction on age. The Declaration is open to an emancipated minor, a route the Living Will Act writes into its own text rather than leaving to be inferred. The Power of Attorney for Health Care carries no such allowance; it falls back to Illinois’s general rule that eighteen is the age of legal capacity for all purposes.

Put together, Illinois’s two documents are genuinely two different signing errands, not one errand told twice. Sign the Declaration and you need two people. Sign the Power of Attorney for Health Care and you need one, but a more particular one.

Common questions

Sources and review