Often overlooked in a client’s estate plan, Powers of Attorney can have the most significant impact on clients’ lives. Estate planning attorneys generally prefer to focus on the “sexier” topics of estate and income taxes and shaping the client’s legacy. Unfortunately, the portion of the meeting dedicated to the discussion of Powers of Attorney is comparatively minimal. Yet, attorneys outside the practice of estate planning are often asked by friends and family members to draft a “simple” Power of Attorney. Even worse, consumers purchase these documents from Legal Zoom or, gasp, are directed by a financial or health care professional on how to complete the statutory forms, often in the middle of a health crisis.
The Illinois Power of Attorney Act1 specifies the guidelines for the Power of Attorney for Property and the Power of Attorney for Health Care. This statute provides the individual designated as agent the scope and authority in which to make financial and health care decisions for the principal.2 It also lays out the duty that agent has to the principal.3 The statute seeks to protect third parties who rely on these documents in good faith so that reliance will be assured when the agent is called to act on behalf of the principal.4
On August 26, 2014, then-Governor Quinn signed Senate Bill 32285 amending the Illinois Power of Attorney Act, effective January 1, 2015. This amendment made dramatic changes to the Power of Attorney for Health Care, leaving the Power of Attorney for Property unaffected.6 A review of the amended statute will likely lead to a determination of whether these changes are for the better or for the worse. However, if asked to draft a “simple” Power of Attorney, be aware of the amendments and draft the document with an eye towards these amendments.
Additions and Eliminations to the Definition Section. In the 2014 Amendment to the Illinois Power of Attorney Act, the initial change occurs in Section 4-4, Definitions.7 The term “Health Care Professional” has been added to “Health Care Provider” in 4-4(d), as well as to the list of individuals who are not allowed to act as an agent.8 An additional change to the definitions section is the inclusion of “Health Care Agent.” A Health Care Agent is defined to be an individual over eighteen years of age designated by the principal to make health care decisions and who serves as a personal representative.9
A Health Care Agent cannot be the principal’s physician or health care provider, keeping in mind that the expansion of “health care provider” now encompasses a health care professional.10
These changes expand the limitation on who can serve as an Agent under a Health Care Power of Attorney. Section 4-5, Limitations on Health Care Agencies, explicitly adds health care professionals to the list of individuals who may not act as agent unless that individual is not administering health care to that patient. 11 That list still includes the attending physician and health care provider, with the same stipulation that the attending physician and health care provider cannot serve if he or she is the patient’s care provider.12
The other prominent change to the definition section is the elimination of what were previously considered fundamental definitions. No longer do you find the definition of “incurable and irreversible condition,” “permanently unconscious” or “terminal condition.”
These definitions are removed from this section because they are no longer used in the amended statutory form Power of Attorney for Health Care.
Revised Witness Requirements. From a practice standpoint, a notable change was made to who can witness a Power of Attorney for Health Care. This will be crucial to note when reviewing a client’s document executed after January 1, 2015, or if traveling to a health care facility to execute a Power of Attorney. A witness must now be eighteen years of age. The list of licensed professionals providing care to the principal who cannot serve as a witness now includes: an advanced practice nurse, physician assistant, dentist, podiatric physician, optometrist as well as the previously listed attending physician or mental health provider.13
A relative of any of the listed individuals who are providing care to the principal may also not serve as a witness.14 The prohibition of an owner or operator of a health care facility, relative of the principal or the agent from serving as a witness remains intact.15 If executing the document at a health care facility because the client is unable to meet in an office, this additional limitation on who can witness it will become important. Likewise, when reviewing the validity of the document, ensure the witness is a valid individual.
Modified Statutory Form Power of Attorney for Health Care. An increasingly louder drumroll should now play in one’s mind for the most dramatic change of all: the statutory form Health Care Power of Attorney itself. From the Notice to the Individual Signing the Power of Attorney for Health Care, to the layout, structure and language of the form, the old form has been entirely scrapped, nothing being quite the same.16
The Notice to the Individual Signing the Power of Attorney for Health Care is not quite a notice any longer. It now takes the form of a Frequently Asked Questions section and reads more as an informational pamphlet, approximately four to five pages long, as opposed to the more concise one page notice of the past. The introduction to the Notice provides there are additional information and on-line resources to guide the conversation on end of life measures, perhaps in a reference to the Five Wishes.17 The topics covered in the Notice range from, “Whom Should I Choose to be My Health Care Agent?” to “What Do I Do With This Form Once I Complete It?” and “What If I Do Not Want to Use This Form?,” among others.18
The information provided under the heading, “What Are The Things I Want my Health Care Agent to Know?,” specifically section (vi), simply discusses other documents a principal may execute.19 While it is the practice of some attorneys to execute Living Wills along with a Power of Attorney for Health Care, it is not universal. The attorney who does not execute Living Wills with a Health Care Power of Attorney may want to edit this section accordingly.
Perhaps the most troubling section for drafting attorneys and those who have participated in a family feud regarding the care of their loved one, is the information found in the heading, “What If I Do Not Want to Use This Form?.” The statutory language provides, “…any document you complete must be executed by you, designate an agent authorized by law to serve as an agent, and state the agent’s powers, but it need not be witnessed or conform in any other respect to the statutory health care power.”20 Wow. This is very powerful language. To what extent litigation will occur over whether or not one sentence, un-witnessed, written on a scrap piece of paper, designating one family member over another is a valid power of attorney remains to be seen, as will how a medical provider responds when presented with this scrap of paper. What is the liability then of a facility or medical provider who ceases treatment based on this scrap paper or continues to treat as a result of it? The effects of this statement may prove astounding if they create any of the numerous scenarios that one can imagine. However, the statement also allows drafting attorneys the freedom to customize and tailor each document to the client’s needs by including provisions regarding religion, the ability to hire a care advocate, to provide for access to all family, or whatever the client may need.
In the form itself, there are many differences to the format and language of the form when compared to the prior version. Unchanged, the principal is named first followed by the designation of the agent.21 The designation is followed by a section which lists four statements outlining the authority of the agent.22 The client, along with his or her attorney, should carefully read the four listed provisions to ensure the client is agreeable to providing the authority stated in each, crossing out or amending any that are not agreeable. If a separate Disposition of Remains agent is requested, this must be considered with (iv) of this section and may need to be stricken. The effective date of the power is then selected using a check the box approach.23
The essential directions to the designated agent follows the effective date in the form of a paragraph, said paragraph being an instruction to the agent to consider the relief of suffering, quality, and possible extension of life and the previously stated wishes of the principal.24 The form further states, “Your agent will weigh the burdens versus the benefits of proposed treatments in making decisions on your behalf.”25 A version of this familiar-sounding language was found in the previous statutory form which laid out for the principal three choices of differing authority in the agent to make a decision as to life-prolonging measures. These three choices are now replaced with two statements that the principal is asked to designate as best expressing his or her wishes.26 These two statements must be read closely and analyzed as they have very different language than the three choices previously provided in the statutory form. The two statements were rewritten in an attempt to make it easier for the general public to understand them, and to clarify what the designated agent will have authority to do. When closely read, the first option requires a physician to believe “…that I will not wake up or recover my ability to think, communicate with my family and friends, and experience my surroundings…” before the statement reads, “I do not want treatments to prolong my life.”27
That ambiguity makes it unclear who is actually making decisions: the principal through previously directed statements, the agent utilizing the guidance provided by the principal, or the physician who must first have the stated beliefs. The second option expresses the sentiment that the principal wants all life prolonging measures and wishes to be kept alive in accordance with reasonable medical standards.28
However, the selection of a statement, as written, is optional and the form can be modified if the principal is less concerned as to what the physician does or does not believe or wishes to express some other guidance for the agent to follow.29
The principal is then able, as he or she previously was, to limit the authority of an agent in care decision-making and the power to authorize autopsy or disposition of remains.
Although the form in this section only addresses limitations, this might also be a good place to add any enhanced authorities granted to the agent.30
Immediately after the limitations on authority section, the principal is directed to execute the document.31
The principal’s signature is then followed by a section to be completed by a witness.32 When reviewing the witness signature, one must now consider the limitations on who can serve as a witness (as previously discussed). A substantial change is made to the witness section in that the witness no longer must actually witness the execution by the principal but can check a box that states, “the principal told me that the signature mark on the principal signature line is his or hers.”33 Of course, the amended Act now states that a Power of Attorney for Health Care doesn’t require a witness at all if it is executed by the principal, designates an agent authorized by law to serve as an agent, and states the agent’s powers.34
After the signature of a witness, the form then provides for an optional Successor Agent(s) to be named.35 This is different from the prior form in that this designation is now found after the principal has executed the document indicating it states his or her wishes and directions. As a drafting attorney, one must strongly consider moving this designation to a section before the principal executes the document to ensure that a name is not added to the form unbeknownst to or unconfirmed by the principal.
The amendment to the Illinois Power of Attorney Act and its corresponding changes to the Health Care Power of Attorney require thoughtful review by any attorney who is going to draft this document. While it is much easier to focus on the various documents that make up a client’s estate plan, or to consider this a “simple” form, no other single document has a more significant an impact on a client’s life. While what happens after a client passes away affects the beneficiaries or the client’s ultimate legacy, this document controls the type of care the client receives during perhaps the most vulnerable time in the client’s life. Therefore, it is imperative that drafting attorneys never take its execution lightly, and begin to give the discussion regarding this document a prominent place in our process with clients.
1 755 ILCS 45.
2 755 ILCS 45/3-4 and 755 ILCS 45/4-7.
3 755 ILCS 45/2-7.
4 755 ILCS 45/2-8 and 755 ILCS 45/4-8.
5 Illinois S. 3228, 98th Assembly, (May 30, 2014).
7 755 ILCS 45/4-4.
11 755 ILCS 45/4-5.
13 755 ILCS 45/4-5.1.
16 755 ILCS 45/4-10(b).
17 Id. There is a heated debate among practitioners on the use of the Five Wishes document. See Koening, III, Ray J. and Hyde, MacKenzie, Be Careful What You Wish For: Analyzing the “Five Wishes” Advance Directive, 97 Ill. B. J. 242 (2009), and the following letter to the editor, 97 Ill. B. J. 274 (2009).
Kathleen M. May is an Associate Attorney with Huck Bouma, P.C. in Wheaton, IL concentrating her practice in the areas of Elder Law and Special Needs planning, Wealth Transfer and Estate Planning, and Estate and Trust Administration. Utilizing her background and experience in the healthcare industry, Katie assists clients and their families navigate the complex system of government benefits as well as to design and implement the legacy they wish to create.