Author: David Wolowitz & Michael O'Connor, Prairie State Legal Services
Last updated: November 2008

(Chapter 8 Section 3 from Guidebook of Laws and Programs for People with Disabilities)

 

 

 

The Illinois Power of Attorney Act; The Illinois Living Will Act

What Is It? These are state laws authorizing advance directives. An Advance Directive, such as a Power of Attorney or a Living Will, is a legal document which you prepare, or which someone prepares on your behalf. It is a legal way of making sure that your wishes concerning your health care and financial affairs are known and are followed in the future.

What Is Its Purpose? To allow you the opportunity to prepare an advance directive, knowing that, due to illness, disability or other incapacity, you may not be able to speak for yourself at the time that a health care or property decision must be made. To give the power to an agent to make the financial and health care decisions you would have made. To provide standardized forms that individuals can use to authorize an agent to act for them.

Who Can Benefit? All persons who want to prepare for the day that they will not be able to act for themselves on financial or health care matters, due to illness, disability or incapacity.

I. Your Legal Rights

 

Power of Attorney For Health Care

Reasons to Have A Power of Attorney for Health Care
A Power of Attorney for Health Care (POA) is a written document in which you name a person to whom you give the right to make health care and personal care decisions on your behalf. The person to whom you give this authority is called your "agent" or your "attorney in fact." Despite the use of the word "attorney" in the title of the document, the person appointed as agent usually is not a lawyer. It is usually a spouse, or other close relative or friend. Your treating doctor or any other health care provider cannot be your agent.

If a time comes when you are not physically or mentally able to make decisions or express your wishes, then someone else must make decisions for you.  A Power of Attorney is a way for you to decide in advance who will make decisions for you, and to give that person guidance on how you want your affairs to be handled.

What Can the Agent Do on Your Behalf?
The Power of Attorney can be drafted to give your agent the authority to make decisions concerning only a limited number of issues. Or, it can give the agent permission to make all decisions concerning any health care and all necessary personal care decisions. This includes the authority to do the following:

• Consent to medical treatment; and
• Refuse or withdraw medical treatment, even if doing so will result in your death;
• Admit you to or discharge you from any hospital, institution, home, residential or nursing facility, treatment center or any other health care institution;
• Contract for any type of health care service or facility, and bind you to pay for any such service or facility;
• Examine and copy your medical records, and to consent to their disclosure.

The agent can also be given the authority to make certain decisions after your death, on such things as making an anatomical gift, autopsies, and disposition of the remains.

How Does the Agent Decide What to Do?
The Power of Attorney document usually includes a section in which you state your wishes about whether you would want to receive life support and when you would want life support stopped. Your agent should follow what the document says. For health care decisions other than life support issues, your agent should decide what to do based on what you have previously said, or on what he or she thinks you would want done.

Limits On What the Agent Can Do
As long as you are able to make decisions and express your wishes, you alone have the authority to control your affairs. Your agent does not have the right to override your decisions.

Once the POA goes into effect, the powers of the agent do not include powers that you expressly exclude in the POA. You do not have to give your agent all of the the broad powers described above. The POA can be drafted to leave out any of the above powers, or to limit them in any way you want.
Examples:
(1) You can provide instructions in the POA regarding when life-sustaining measures should be withheld;
(2) You can provide a direction to continue food and fluids or life-sustaining treatment in all events;
(3) You can provide instructions to refuse specific types of treatment that are inconsistent with your religious beliefs or unacceptable to you for any other reason, such as blood transfusion, electro-convulsive therapy, amputation, psycho-surgery, etc.

What Your Agent Is and Is Not Required To Do
The agent is not legally required to exercise the powers given in the POA. Nor is the agent required to assume responsibility for your affairs. This is true regardless of your physical or mental condition. The agent you appoint can decline to act if he or she becomes ill or decides for any other reason not to handle your affairs. Whenever the power is used, however, the agent is always required to use due care to act for your benefit, according to the terms of the POA.

Having More Than One Agent
You can name more than one agent. However, only one person can be your agent at one time. If you name more than one agent, the power to act on your behalf will pass to the second agent only if the previous agent cannot or will not act on your behalf.

How Long Does the Power of Attorney Last?
Generally, a Power of Attorney will remain in effect until your death, unless you state otherwise in the document. You have the right to end the POA at any time. This can be done by destroying the document or by other means, but it is best to sign a formal written revocation.

You also have the right to change the POA at any time, in order to change your agents, add additional agents, or to change other terms of the POA. You must make any changes in writing, and you or someone acting at your direction must sign and date these changes.

The Duties of Health Care Providers
When a health care provider is given a copy of the POA, it is required to make it a part of your medical records. Likewise, the provider must note in your records whenever informed that the agency has been changed or terminated.

Whenever a provider believes you lack the capacity to consent to necessary health care, the provider is legally required to consult with any agent that it knows about. The doctor or other health care provider is required to comply with any power exercised by the agent in accordance with a POA. If the provider is unwilling to comply with the agent's health care decision, the agent must arrange a transfer to another provider.

Signing the Power of Attorney
You must sign and date the Power of Attorney form. You must sign the form in the presence of a witness.

Who Should Have a Copy of Your Power of Attorney for Health Care
It is important that your doctors have a copy of these documents. If you regularly use a certain hospital, you should give them a copy as well. You should give a copy to the people whom you named as your agents and any other close family members. It is a good idea to keep a list of the people who have a copy. This way, if you make any changes in the future, you will make sure that they are notified.

Penalties for Falsifying or Concealing a POA
Any person who falsifies, conceals, or changes a POA, without your consent, can be sued for any harm that comes to you as a result. If any of these actions were taken to cause a withholding or withdrawal of life-sustaining or death-delaying procedures, and you die as a result, the person can be charged with involuntary manslaughter.

It is unlawful for someone to require you to execute a POA or to prevent you from having a POA as a condition of providing you with insurance or providing health care to you. A person who violates this law can be sued for any harm that results to you and can be charged with a Class A misdemeanor.

 

Power of Attorney for Property

What is a Power of Attorney for Property?
A Power of Attorney for Property is a document in which you name a person to whom you give the right to make property and financial decisions on your behalf.

Why You Might Need To Have a Power of Attorney
If a time comes when you are not able to attend to your financial affairs, then someone else must do so. However, no one else has the legal right to do these things unless someone is named as your legal guardian or you have named someone as your agent in a POA. A Power of Attorney is a way for you to decide in advance who will handle your finances on your behalf.

What the Agent Can Do on Your Behalf
The Power of Attorney can be drafted to give your agent the authority to make decisions concerning only a limited number of issues. Or, it can give the agent permission to make all necessary financial or property decisions. This includes the authority to handle your income and anything else that pertains to your money, your belongings, and your other financial affairs. The agent's powers can include the power to do the following:

• Make real estate or personal property transactions;
• Control all bank (or other financial institution) transactions or accounts;
• Buy and sell all types of stocks and securities;
• Open and control safe deposit boxes;
• Deal with any type of insurance or annuity policy or transaction;
• Contribute to or withdraw from any retirement plans;
• Handle all tax matters;
• Bring or defend or settle all claims and lawsuits;
• Conduct all business operations;
• Borrow money or mortgage property;
• Handle legacies, bequests, or other estate transactions.

Limits on What the Agent Can Do
As long as you are able to make decisions and express your wishes, you alone have the authority to control your affairs. Your agent does not have the right to override your decisions.

Once the POA goes into effect, the powers of the agent do not include powers that you expressly exclude in the POA. You do not have to give your agent all of the the broad powers described above. The POA can be drafted to strike out any of the above categories, or to limit them in any way you want.
Example: You can strike out the power to sell a particular piece of property.

What Your Agent Is and Is Not Required to Do
The agent is not legally required to exercise the powers given in the POA. Nor is the agent required to assume responsibility for your affairs. This is true regardless of your physical or mental condition. The agent you appoint can decline to act if he or she becomes ill or decides for any other reason not to handle your affairs. Whenever the power is used, the agent is always required to use due care to act for your benefit, according to the terms of the POA.

Can You Name More Than One Agent?
Yes. However, only one person can be your agent at one time. If you name more than one agent, the power to act on your behalf will pass to the second agent only if the previous agent cannot or will not act on your behalf.

How Long Does the Power of Attorney Last?
Generally, a Power of Attorney will remain in effect until your death, unless you state otherwise in the document. You have the right to end the POA at any time, provided that you are competent (you fully understand what you are doing). This can be done by destroying the document or by other means, but it is best to sign a formal written revocation.

You also have the right to change the POA at any time, in order to change your agents, add additional agents, or to change other terms of the POA. You must make any changes in writing, and you or someone acting at your direction must sign and date the changes.

Signing the Power of Attorney
You must sign and date any Power of Attorney form. You must sign the form in the presence of a witness, and have the form notarized.

Living Wills

What is a Living Will?
A Living Will is another type of advance directive, which is used to control decisions about life support. By signing a Living Will, you state that you do not want to receive any form of life support if your doctor determines that you are terminally ill and your death is imminent. The Living Will gives your doctor permission to withhold or discontinue life support if this happens.

There is a standardized form for the Living Will, but the declarations in the Living Will do not have to be made on that form.

The Difference Between A Living Will and a Power of Attorney
A Living Will is much different than a Power of Attorney. The Living Will does not appoint an agent to speak for you to make sure that your wishes are followed. Also, the Living Will does not deal with any health care decisions other than life support.

A Living Will authorizes the withdrawal or withholding of life sustaining treatment only under the limited circumstances described above. By contrast, a Power of Attorney gives you the ability to specify the circumstances under which you would want life support withheld or withdrawn.

Need For Both a Living Will and a Health Care Power of Attorney
If you do not wish to receive life support, it is a good idea to sign a Living Will in addition to a Power of Attorney. If the agent that you name in the POA is not able or available to act on your behalf, then the POA cannot be used to withhold or withdraw life support. But if you have a Living Will, your doctor can follow your wishes. It is important to understand that the Living Will is used only if your POA for Health Care cannot be used because your agents cannot or will not act.

Signing a Living Will
You must sign a Living Will in the presence of two disinterested witnesses. A disinterested witness is someone who is not related to you by blood or marriage.

Who Should Have a Copy of Your Living Will
It is important that your doctors have a copy of your Living Will. If you regularly use a certain hospital, you should give them a copy as well. You should give a copy to anyone named as your agents under a Power of Attorney and to close family members.

It is a good idea to keep a list of the people who have a copy. This way, if you make any changes in the future you will make sure that they are notified.

Revocation of a Living Will
You can revoke the Living Will at any time, regardless of your mental or physical condition. This can be done by destroying the document or by other means, but it is best to sign a formal written revocation.

 

II. Where to Go for More Information

Statutes
The statute for the Health Care Power of Attorney can be found at 755 ILCS 45/4.
The statute for the Power of Attorney for Property can be found at 755 ILCS 45/3.
The statute for the Living Will can be found at 755 ILCS 35/1.

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