Yes. If you’re spouse has not yet divorced you, you have no health care power of attorney, and you are not conscious, your spouse can make medical decisions on your behalf.
Understandably, this is disturbing at best and terrifying at worst. Let’s go through the steps you’d have to take to make sure this doesn’t happen if you live in Chicago, Illinois.
“When a patient lacks decisional capacity, the health care provider must make a reasonable inquiry as to the availability and authority of a health care agent under the Powers of Attorney for Health Care Law.” 755 ILCS 40/25
So, if you can’t make decisions for yourself, the doctors first look to see if there is a health care agent.
“”Health care agent” means an individual at least 18 years old designated by the principal to make health care decisions of any type, including, but not limited to, anatomical gift, autopsy, or disposition of remains for and on behalf of the individual. A health care agent is a personal representative under state and federal law. The health care agent has the authority of a personal representative under both state and federal law unless restricted specifically by the health care agency.” 755 ILCS 45/4-4
This means that you have to fill out the statutory short form power of attorney for health care to appoint a health care agent.
Don’t just expect the hospital to have your health care agent’s information on file. “It is the responsibility of the agent or patient to notify the health care provider of the existence of the health care agency and any amendment or revocation thereof.” 755 ILCS 45/4-7(a). Realistically, this means that your agent has to know you’ve appointed them as an agent and have proof if needed.
You can also provide the evidence that you have a health care agent directly to the hospital or doctor and they’ll have to keep it on file. “A health care provider furnished with a copy of a health care agency shall make it a part of the patient’s medical records” 755 ILCS 45/4-7(a). I would still recommend ensuring that your health care agent has a copy of their power of attorney appointing them as a health care agent.
If you have no health care agent, the statute lays out a list of people who can make the important health care decisions if you are not conscious.
“[F]or patients who lack decisional capacity and have a qualifying condition, medical treatment decisions including whether to forgo life-sustaining treatment on behalf of the patient may be made without court order or judicial involvement in the following order of priority:
(1) the patient’s guardian of the person;
(2) the patient’s spouse;
(3) any adult son or daughter of the patient;
(4) either parent of the patient;
(5) any adult brother or sister of the patient;
(6) any adult grandchild of the patient;
(7) a close friend of the patient;
(8) the patient’s guardian of the estate” 755 ILCS 40/25(a)
You’ll notice that “patient’s spouse is number two on the list. Thankfully, a relative or friend who realizes this could petition to become your guardian while you’re incapacitated and like receive guardianship on the basis that there is a filed divorce. If you were just separated or in an obviously troubled relationship, it’s going to be a lot more difficult for a friend or family member to get guardianship.
Once you’re divorced, your spouse is no longer your spouse so they have no authority. Additionally, even if you had once appointed your spouse as your health care agent, the statute says that agency is revoked.
“If a court enters a judgement of dissolution of marriage or legal separation between the principal and his or her spouse after the agency is signed, the spouse shall be deemed to have died at the time of the judgment for all purposes of the agency.” 755 ILCS 45-26(b)
So, if you’re in the middle of a divorce, fill out a the statutory short form power of attorney for health care.
If you have questions about who will make medical decisions for you before, during or after your divorce contact my Chicago, Illinois law office for a free consultation.
If you have questions about preparing a power of attorney or other documents like that, please contact attorney Roberto Perrom whose office is just 1.4 miles from my office. Directions below: