This article will discuss the laws pertaining to Illinois living wills and provide the most up to date changes to the law. There have been no significant changes to living will laws for 2024.
The most recent change to living wills laws in Illinois is the Electronic Wills and Remote Witnesses Act, which allows video streaming or chatting to fulfill the witness requirements of executing wills and witnessing wills under Illinois law, previously under Illinois law for a will to be valid, the testator had to sign the will in front of the witnesses, this requirement is now eliminated for all wills executed in the state of Illinois, including living wills.
What is a Living Will in Illinois?
In Illinois a living will is essentially a piece of paper with instructions for your health care providers such as doctors and health care facilities on what your wishes are for health care decisions and health care related treatments if you fall terminally ill. If you are unable to verbally or consciously convey your wishes pertaining to your healthcare decisions because of the fact that you are essentially incapacitated i.e. in a coma or suffering from a terminal illness in which death is readily apparent, a living will guides your healthcare providers on what to do.
It is important to note that a living will only applies if you have a condition where death is likely to occur and your health condition is considered terminal, some examples of this would be having a diagnosis of terminal cancer or suffering a heart attack and falling into a vegetative or comatose state.
An Illinois living will prevents you from receiving care that would stop you from dying for example, if you did not want to be resuscitated after falling into cardiac arrest while suffering from terminal cancer, and had language in your living will that states, “in the event that I suffer cardiac arrest as a result of my terminal cancer, please do not resuscitate me, as I do not desire medical care that prevents my death such as life-support, blood transfusions, kidney dialysis, feeding tubes, or intravenous medications”, or “in the event that I fall into a comatose or vegetative state please do not give me treatments such as life-support, blood transfusions, kidney dialysis, feeding tubes, or intravenous medications as I do not desire medical care that prevents my death” this language in your Illinois living will, effectively carries out your wishes and you will not be given life-saving treatment.
Administering food and water cannot be taken away from you as a patient even when you have a living will, if doing so would be the only cause of death i.e. dehydration or starvation. If you a pregnant mother and a doctor believes that you can carry out a successful pregnancy, then the living will not be honored by your doctors or healthcare professionals.
Key Components of a Valid Living Will
A valid living will in Illinois needs to meet the following criteria:
- You must be a legal adult.
- It must have two witnesses.
- It needs to be voluntary and free from external influence.
- It must clearly articulate your healthcare preferences, including decisions about life-sustaining treatments, pain management, and end-of-life care.
Having detailed medical preferences in your living will not only empower you to communicate your wishes in potential incapacitation scenarios but also provide healthcare facility staff with clear guidance on your desired level of care.
Appointing a healthcare agent is another critical element of a valid living will - a trusted individual, who will make healthcare decisions on your behalf if you’re unable or unwilling to do so. Illinois law requires this choice to be documented in writing and communicated to the healthcare facility where you receive treatment.
Choosing Appropriate Witnesses
It is vital to choose suitable witnesses for your living will. In Illinois, it’s permissible for a family member to act as a witness, provided they don’t have direct financial responsibility for your medical care and don’t stand to inherit from you. This helps to ensure that there are no conflicts of interest.
However, some individuals are ineligible to act as witnesses. These include:
- Individuals who may inherit from you
- Healthcare providers directly responsible for your care
- Individuals who have a financial responsibility for your medical expenses
By choosing your witnesses carefully, you can prevent any actual or perceived conflicts of interest, ensuring the legitimacy of your living will.
Illinois Updates To Wills Testator Allowed To Execute A Will Remotely And Remote Witnesses Allowed
Under the old law in order to create a valid living will in Illinois you need to have two witnesses present, the witnesses must watch you sign it in front of them, the witnesses need to be above the age of majority which is 18 years old in Illinois, and the witnesses need to sign the living will. It is important to note that the witness may not be someone that stands to gain a benefit from you such as a beneficiary of your life insurance, last will and testament, or anyone else who may inherit property from you upon your death as a beneficiary.
Governor J.B. Pritzker signed into law effective July 26, 2021 Electronic Wills and Remote Witnesses Act which allows a testator to execute a will remotely and allows utilizing remote witnesses to witness the wills through audio or visual communications, such as video-chat, FaceTime, Skype, telephone, or any other electronic means.
Under the old law, witnesses needed to be in front of the testator and in the physical presence of the testator while the testator was creating the will, the new law eliminates the need for witnesses being physically present to witness the testator executing the will and allows for remote video conferencing instead. This changes the requirements for the testator creating or and the witnessing the testator executing a will in Illinois. This measure was most likely brought into law because of the ongoing Covid-19 pandemic where social distancing has become the new normal. This law makes it easier for testators and witnesses to create a valid will, including a valid living will in Illinois. The new law is similar to the old law but allows for virtually executing wills and has the following requirements:
- An electronic will must be created by the testator or someone else acting int the testator’s conscious presence and in the testator’s direction, by at least two witnesses.
- Testator is now allowed to sign the will electronically rather than by hand. Or have another person sign for him at his direction to sign the electronic will.
- Person signing the electronic will must not be a witness to the testator’s execution of the electronic will, someone who will receive a future beneficiary status of the testator’s estate, or the spouse or child of the person receiving such a future beneficiary status of the testator’s estate.
- Each of the witnesses to the testator signing the will must sign the electronic will electronically immediately after seeing the testator sign the will, or seeing another person sign the will at the testator’s direction or a person who sees the testator accept the signature as his own.
- The electronic witness must be witnesses need to be above the age of majority which is 18 years old in Illinois, and the witnesses need to electronically sign the living will.
How Do I Cancel A Living Will In Illinois?
You can cancel a living will or electronic will in Illinois at any time, at your discretion. To execute this, create a valid codicil, which is a piece of paper or document which is dated and signed by you explaining in the codicil that you are revoking your previously written living will. You should then send the codicil to your family members, doctor(s), attorney(s), power of attorney, healthcare facility, nursing home, and anyone else who had notice of the original living will, the revocation or cancellation of the living will is only effective once other people who had prior notice of the living will receive notification by you that the living will has been revoked/canceled. Intentionally physically destroying the original living will by burning ripping or tearing the living will, effectively revokes the living will. Also, stating in front of a witness that you want to revoke the will who is of the age of majority in Illinois which is 18 will effectively revoke the living will. And lastly, you can revoke the living will by having someone write out your wishes of having the will revoked on a piece of paper at your direction and in your presence.
You can modify or revise your living will in Illinois at any point, as long as you are mentally capable of making such determinations. While hiring an attorney to update your living will can be helpful, it’s not a requirement in Illinois. You have the capability to do so independently.
Is My Illinois Living Will Valid In Other States?
Your Illinois living will is valid in other states, as long as the living will is in compliance with the laws of the state you are in at the time your living will goes into effect. It is a good idea to consult with a skilled estate-planning attorney if you plan on moving to another state or if you are planning on staying in another state for an extended period of time, to ensure that your living will be honored. You might be wondering if your out of state living will can be honored in Illinois, the answer to this question is that as long as the will conforms to the Illinois Living Will Act pertaining to living wills, your living will effectively will be honored in the state of Illinois.
Summary
Navigating the intricacies of living wills in Illinois may feel daunting, but it doesn’t have to be. By understanding the basic components of a living will, the legal requirements in Illinois, and the process of creating, communicating, revoking, or amending your living will, you can take control of your end-of-life care decisions.
Remember, a living will is more than just a legal document – it’s a tangible expression of your wishes and values. By taking the time to create a valid living will, you ensure that your voice is heard, even when you can’t speak for yourself.
Frequently Asked Questions
Does a living will need to be notarized in Illinois?
No, a living will does not need to be notarized in Illinois. While it is not required by the state, some people choose to have it notarized to provide additional proof of their signature.
How do I get a living will in Illinois?
To get a living will in Illinois, as a resident who is 18 or older, you can execute the document by signing it in the presence of two independent witnesses, and an attorney is not required.
What is the Illinois living will Act?
The Illinois Living Will Act allows individuals to declare their desire to withhold or withdraw death-delaying procedures in the event of a terminal condition as diagnosed by a physician. This act provides specific definitions for legal terms related to living wills.
What are the requirements for a will to be valid in Illinois?
To create a valid will in Illinois, you must be at least 18 years old, of sound mind, and aware of the assets you own and who you want to gift them to after you pass away. Additionally, the will must be signed by the testator or by someone else in the testator's name in the testator's presence, by the testator's direction. It is also required to have two or more credible witnesses validate or attest the will.
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