Amended Illinois Power of Attorney Act

14 Dec 2010

 

The Illinois Power of Attorney Act, 755 ILCS 45, which establishes the legal rules for health care and property powers of attorney in Illinois, will be amended, effective July 1, 2011, by Public Act 096-1195.  A significant portion of the Act will be modified, including the Statutory Short Forms for both health care and property powers of attorney.

 
Although the validity of previously executed powers of attorney will not be affected, some clients may find it advantageous to execute updated powers of attorney for health care after July 1, 2011 in order to take advantage of the new provisions contained in the amended Statutory Short Form Power of Attorney for Health Care. In contrast, the Amendment makes no substantive changes to the Statutory Short Form Power of Attorney for Property and therefore provides no additional incentive to update such instruments outside of the ordinary course of periodic review of one's estate planning documents.

Under the current law, each Statutory Short Form Power of Attorney for Health Care contains three basic options for directing how an agent shall act with regard to life-sustaining treatment, of which a principal selects one. The Amendment significantly alters the second available option, which may better suit the needs of some clients. The three alternate options currently available for powers of attorney executed prior to July 1, 2011 are as follows:

  
 

(1)  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.

 

(2)  I want my life to be prolonged and I want life-sustaining treatment to be provided or continued unless I am in a coma which my attending physician believes to be irreversible, in accordance with reasonable medical standards at the time of reference. If and when I have suffered irreversible coma, I want life-sustaining treatment to be withheld or discontinued.

 

(3)  I want my life to be prolonged to the greatest extent possible without regard to my condition, the chances I have for recovery or the cost of the procedures.


The Amendment substitutes the language of the second option with the following:


I want my life to be prolonged and I want life-sustaining treatment to be provided or continued unless I am, in the opinion of my attending physician, in accordance with reasonable medical standards at the time of reference, in a state of "permanent unconsciousness" or suffer from an "incurable or irreversible condition" or "terminal condition", as those terms are defined in Section 4-4 of the Illinois Power of Attorney Act.  If and when I am in any one of these states or conditions, I want life-sustaining treatment to be withheld or discontinued.


The effect of this change is to make the second option, which largely removes the decision from the hands of the agent and places it in the hands of the principal's attending physician, much more attractive.  While the agent continues to have the ultimate responsibility for any decision, he or she may rely on a physician to make a determination of whether or not the principal's condition is "permanent," "terminal," or "incurable."  The amended language provides more explicit guidance and a broader set of factors that may be considered by an attending physician, including such things as "severe pain" and the "inhumane burden" that the illness imposes on the patient, whether there is a reasonable prospect for cure or recovery, the potential medical benefit of any treatment, and whether the principal has any "awareness of self."  This option may be appropriate for those persons who would prefer to lessen the agents burden when making a decision or for those who do not ultimately trust their health care agent to make the decision to end life-sustaining treatment when appropriate.

The only other major substantive changes made by the Amendment regard the duties owed by an agent to a principal under a power of attorney.  The Amendment expands and clarifies the standard by explicitly stipulating that an agent must act in "good faith" and "in accordance with the principal's expectation."  This updated language is much clearer and likely more in line with what a principal expects of an agent under a power of attorney.  Those powers of attorney executed under the previous law do not need to be updated for the new statutory duties to apply.

 


FULL SUMMARY OF AMENDMENTS


The following is a more complete summary of the various changes that are made by the Amendment:


Agent's Duties

The Amendment strengthens the duties owed by an agent to a principal under a power of attorney.  The standard, contained in Section 2-7,  that an agent must "use due care to act for the benefit of the principal" has been updated to require that the agent "act in good faith for the benefit of the principal using due care, competence, and diligence in accordance with the terms of the agency. . . ."  New Subsection 2-7(b) also imposes on agents the additional duty to act "in accordance with the principal's expectations to the extent actually known to the agent and otherwise in the principal's best interests."

The Amendment also expands the requirement in Section 2-7 that agents maintain records of all "receipts, disbursements, and significant actions taken under the authority of the agency," by providing that agents must also, upon request, provide copies of records to the following parties:

 

(1) The principal, principal's guardian, other fiduciary of principal, or executor of principal's estate;

 

(2) A provider agency, defined by the Elder Abuse and Neglect Act, acting in response to a complaint of elder abuse or neglect;

 

(3) The Office of the State Long Term Care Ombudsman, acting in the course of an investigation of a complaint of financial exploitation under Section 4.04 of the Illinois Act on the Aging;

 

(4) The Office of the Inspector General for the Department of Human Services, acting in the course of assessing a complaint of financial exploitation of an adult with disabilities pursuant to Section 35 of the Abuse of Adults with Disabilities Intervention Act; and

 

(5) A court as required under Section 2-10 of the Power of Attorney Act.

Compensatory damages are now specifically authorized in new Subsection 2-7(f) for harm caused by an agent's violation of any duty imposed by the Power of Attorney Act.  An agent who violates a duty is liable to the principal or the principal's successors in interest for the amount required (1) to restore the value of the principal's property to what it would have been had the violation not occurred, and (2) to reimburse the principal or the principal's successors in interest for the attorney's fees and costs paid on the agent's behalf.  This provision does not limit the availability of other applicable legal or equitable remedies.


"Agent's Certification and Acceptance of Authority"

As an alternative to the prior provision that an agent, upon request, provide an affidavit stating the instrument is valid to a person asked to rely on a power of attorney, Subsection 2-8(b) now provides a form "Agent's Certification and Acceptance of Authority" which may be used for the same purpose.

 

No Automatic Revocation

The amended section 2-6 now states that the execution of a power of attorney does not automatically revoke a power of attorney previously executed by the principal unless the subsequent power of attorney so provides.  Each short form power of attorney set forth in the statute, however, now includes explicit language revoking prior powers of attorney.

 

Successor and Co-Agents

New Section 2-10.5 provides that co-agents may not be named in a statutory short form power of attorney.  If co-agents are named in a non-statutory power of attorney, a new default rule under 2-10.5 states that majority consent is required before agents may act unless "prompt action is required to accomplish the purposes of the power of attorney or to avoid irreparable injury to the principal's interests and an agent is unavailable because of absence, illness, or other temporary incapacity."  Section 2-10.5 also creates a "Co-Agent's Certification and Acceptance of Authority," which may be used in the same way as the "Agent's Certification and Acceptance of Authority."

The Act now provides, in new Section 2-10.3, that a principal may designate successor agents or may authorize another to designate such agents.  A form "Successor Agent's Certification and Acceptance of Authority," to be used in the same way as the "Agent's Certification and Acceptance of Authority," is also included.


Foreign and pre-existing POAs

New Section 2-10.6A provides that any power of attorney executed in another state or country is enforceable in Illinois if, when executed, it complied (1) with the law of the state or country in which it was executed; (2) the law of Illinois; (3) the law of the state or country where the principal is domiciled, has a place of abode or business, or is a national; or iv) the law of the state or country where the agent is domiciled or has a place of business.

The amended act also states, in Section 2-10.6, that powers of attorney executed prior to July 1, 2011 continue to be valid as long as they complied with the law as it existed at the time of execution.

 

Statutory Short Form Power of Attorney for Property

The "Statutory Property Power" is now deemed to consist of three items: (1) the Notice to the Individual Signing the Illinois Statutory Short Form Power of Attorney for Property; (2) the Illinois Statutory Short Form Power of Attorney for Property; and (3) the Notice to Agent.
 

(1) Notice to the Individual Signing the Illinois Statutory Short Form Power of Attorney for Property

 

      This notice to the principal, created in Section 3-3(c), replaces the introductory notice that was previously included on the statutory short form itself.  This notice must be printed separately from the short form, must be in 14-point type, and must be attached to the short form as a coversheet.  The notice must be initialed by the principal.

 

(2)  Statutory Short Form Power of Attorney for Property

 

      The new Statutory Short Form is included in Section 3-3(d).  The new language differs from the prior form only in a few minor respects. 

 

      In order to coordinate with Section 2-6, as discussed above, the first paragraph of the power now includes language stating that the principal "revoke[s] all prior powers of attorney for property."

 

      The explanatory language contained throughout the Statutory Short Form must be "distinguished in some way" from the other language, such as by boldface type.  In the prior form, this language was capitalized.

 

      New language in the attestation clause states that the witness may not be i) an attending physician of the principal, or relative thereof; ii) an owner or operator of a health care facility where the principal is a patient or resident, or a relative thereof; or iii) a relative of the principal or agent.

 

(3)  Notice to Agent

 

      The Notice to Agent, created in Section 3-3(e), must be supplied to the agent appointed under a Short Form Power of Attorney for Property.

 

Statutory Short Form Power of Attorney for Health Care

 

(1)  Definitions


      Section 4-4 has been amended to include the following additional definitions, each of which is used in the new Statutory Short Form Power of Attorney For Health Care:

 

i.    "Incurable or irreversible condition"

 

      An illness or injury "(i) for which there is no reasonable prospect of cure or recovery, (ii) that ultimately will cause the patient's death even if life-sustaining treatment is initiated or continued, (iii) that imposes severe pain or otherwise imposes an inhumane burden on the patient, or (iv) for which initiating or continuing life-sustaining treatment, in light of the patient's medical condition, provides only minimal medical benefit."

 

ii.   "Permanent unconsciousness"

 

      "A condition that to a high degree of medical certainty, (i) will last permanently without improvement, (ii) in which thought, sensation, purposeful action, social interaction, and awareness of self and environment are absent, and (iii) for which initiating or continuing life-sustaining treatment, in light of the patient's medical condition, provides only minimal medical benefit.  For the purposes of this definition, "medical benefit" means a chance to cure or reverse a condition."

 

iii.  "Terminal condition"

 

      "An illness or injury for which there is no reasonable prospect of cure or recovery, death is imminent, and the application of life-sustaining treatment would only prolong the dying process."

     

(2)  Notice to the Individual Signing the Illinois Statutory Short Form Power of Attorney for Health Care

      As with the Short Form Power of Attorney for Property, Section 4-10 provides for a new Notice to the principal signing the Illinois Statutory Short Form Power of Attorney for Health Care that replaces the introductory notice previously included on the statutory short form itself.  The notice must be printed on a sheet of paper separate from the short form, must be in 14-point type, and must be attached to the short form as a coversheet.  The notice must be initialed by the principal.

 

(3)  Statutory Short Form Power of Attorney for Health Care

The new Statutory Short Form language, which is provided in section 4-10, significantly differs from the prior language in following respects:

 

i.    The first paragraph of the power now includes language stating that the principal "revoke[s] all prior powers of attorney for property." This coordinates with new Section 2-6, which states that prior powers of attorney are not revoked unless the subsequent power so provides.

 

ii.   Under the anatomical gifts provision, an additional option stating that the principal does no grant the agent authority to make anatomical gifts has been included.

 

iii.  The previous language stating that the agent has "full power to authorize an autopsy and direct the disposition of . . . remains" has been moved to a new subparagraph 1(c) and broadened to state that the agent's decisions regarding disposition of remains are "binding," that the power of attorney is intended to comply with Section 10 of the Disposition of Remains Act, and that a cemetery organization, funeral director, or funeral establishment who receives a copy of the power of attorney is directed to act under it.

 

iv. Subparagraph 1(d) has been added to appoint the agent as a "personal representative" under the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") who shall have the power to access the principal's medical records and the power to authorize the release of information goverened by HIPAA to third parties.  The new subparagraph  also stipulates that the power of attorney is to supersede any prior agreement with a health care provider, will expire only if and when the power of attorney is revoked, is effective immediately even if the agency shall otherwise take effect at some future date.

 

v.   The three alternative directions available to the principal regarding how the agent should act if life-sustaining treatment is necessary have been updated as follows:

          

a.)  The first option, directing the agent to weigh the burdens of the treatment against the expected benefits, has not been altered.

 

b.)  The second option, which previously stated that life-sustaining treatment should be provided unless the principal is in an irreversible coma, has been updated to state that life-sustaining treatment should be provided or continued unless the principal is "in a state of 'permanent unconsciousness' or suffer[s] from an 'incurable or irreversible condition' or 'terminal condition.'"  The definition of each new term is included in Section 4-4, as discussed above

 

c.)  The third option, which previously stated that the principal's life should be "prolonged to the greatest extent possible without regard to . . . condition, the chances . . . for recovery or the costs of the procedures" has been slightly altered with the insertion of the additional stipulation that any such procedure should be "in accordance with reasonable medical standards."

vi.  As with the Statutory Short Form Power of Attorney for Property, the explanatory language contained throughout the Statutory Short Form Power of Attorney for Health Care must be "distinguished in some way" from the other language, such as by boldface type.