A Power of Attorney (POA) is a type of advance directive. Advance directives allow a client to plan now and make choices, before disability or incapacity strike. In the event that disability or incapacity occurs, a client may not be able to make his or her own property, financial, and/or health care decisions. Having a vaild POA hels to protect the client by naming a trusted individual to make these important decisions on behalf of the client.The Illinois Power of Attorney Act is found at 755 ILCS 45/. The purpose of the act is so that "each individual has the right to appoint [and give authority to] an Agent to deal with property or make personal health care decisions for the individual." The person who gives the authority is referred to as the "Principal" and the person to whom the authority is given is the "Agent."The POA can be drafted to give the Agent authority over certain issues or it can be written to give the Agent authority to make all decisions concerning the Principal's health and personal care. Such authority includes:Consent to medical treatmentRefuse or withdraw medical treatment, even if doing so will result in Principal's deathMake decisions regarding end of life care (life sustaining treatment) consistent with the Principal's wishesAdmit to or discharge Principal from any hospital, institution, home, residential or nursing facility, treatment center of any other health care institutionContract for any type of health care service/facility and bind Principal to pay for itObtain access to the Principal's medical records and consent to their disclosureMake certain decisions after Principal's death such as anatomical gifts and autopsiesMake decisions regarding the disposition of the Principal's remains and have those decisions respected by third parties (funeral homes and the like)Considerations:A Principal may create the Power of Attorney for Health Care only while he or she is still competent, with the intention that the Power of Attorney for Health Care is to be used at some time in the future;A Power of Attorney for Healthcare does not create in the Agent any legal obligation to act. However, the Agent does have a duty to act in good faith for the Principal's benefit and to use due care, competence, and dilligence. The Agent must also act in accordance with the statute and with the statements in the Power of Attorney for Health Care;When using the Stautory Power of Attorney for Health Care forms, a Principal may name successor Agents, but cannot name co-Agents;A Principal should know the Agent well and must trust his or her Agent implicitly.A Principal should thoroughly discuss the Agent's responsibilities and medical philosophy with the Agent prior to creating a Power of Attorney for Health Care;A Principal must carefully draft the Power of Attorney for Health Care form according to his or her needs, as the form will be the basis of the Agent's actions.For common issues that arise relating to POAs for health care, please see the "Issues" tab. What is the duration of a Power of Attorney for Health Care? The Power of Attorney for Health Care takes effect on the date or during the time period designated by the Principal. 755 ILCS 45/2-4(a). The Principal may still be competent at the time when the Power of Attorney for Health Care takes effect. However, as a practical matter, the Principal will make all of their own medical and healthcare decisions for as long as the Principal is able to do so.The Power of Attorney for Health Care is durable; it lasts throughout the Principal's life, including during periods of disability. Duration of agency continues until the death of the Principal (and beyond for authorizing autopsy, authorizing anatomical gifts or directing the disposition of teh Principal's remains) unless the agency states an earlier termination date. 755 ILCS 45/2-5. What are the requirements for a Principal and Agent? The Principal must:Be at least 18 years oldBe of sound mindSign the Power of Attorney for Health Care in the presence of one impartial witness who also signs the documentIt is not a statutory requirement that the Power of Attorney for Health Care be notarized, although many practitioners choose to do so.The Agent must:Be at least 18 years oldBe of sound mindNot be the Principal's health care providerAgree to serve as Principal's appointed AgentWhat are the duties and limits of the Agent's authority? Duties: The Agent has a fiduciary duty to act in the interest of the Principal. The Power of Attorney for Health Care does not place any affirmative duty on the Agent to act. 755 ILCS 45/2-7. Regardless of the Principal's physical or mental condition, the Agent is not legally required to exercise the powers given to him or her in the Power of Attorney for Health Care. The Agent is not liable for any errors in judgment. So long as the Agent acts "with due care for the benefit of the Principal," the Agent is not liable because he or she also benefits from the act, has individual or conflicting interests, etc.Limit(s):The Agent does not have the right to override the Principal's decisions. Why is it important for a Principal to name a successor Agent? It is important to name a successor Agent because the Power of Attorney for Health Care terminates when the Agent dies or becomes incompetent unless a successor Agent has been named.How is the Power of Attorney for Health Care modified? A POA for Health Care may be changed by the Principal at any time, as long as the Principal still has capacity to do so. A Principal may change the terms of the Power of Attorney for Health Care or the Agent or successor Agents. All changes must be put in writing, signed and witnessed (and notarized if the Power of Attorney for Health Care was notarized). When can a Power of Attorney for Health Care be terminated? A Power of Attorney for Health Care terminates when one of the following occurs:Principal dies (except when the Agent retains residual powers such as disposing of Principal's remains, making an anatomical gift, or authorizing and autopsy)Principal has designated a date or a time period for termination and that date or time period arrives Principal formally revokes the Power of Attorney for Health CareAgent dies or becomes incompetent (and there is no successor Agent)Agent wishes to terminate the agency (and there is no successor Agent)Court removes agent for improperly fulfilling his or her duties under the POAHow do you change or revoke an existing Power of Attorney for Health Care? Revocation terminates the Power of Attorney for Health Care. It is achieved in one of the following ways:A written revocation of the agency signed and dated by the Principal or person acting at the direction of the Principal and send the revocation to the Agent (and anywhere the POA has been used) via certified mail Destroying the document (burning, tearing, etc), if Principal has the original copy and informing the Agent that the Agent's services will not be requiredMaking an oral revocation in the presence of a witness who then puts the revocation into writingChanging its terms, changing the Agent, or adding successors, in accordance with the lawCapacity is not specifically required for a Principal to revoke agency, however, a court may rule on whether a Principal has capacity to revoke the agency. If the court finds that the Principal lacks capacity, then the court may terminate the agency and appoint a guardian on the Principal's behalf. Important Consideration:The new Stautory Short Form Power of Attorney for Health Care form has a provision that automatically revokes all previous powers of attorney for health care. It is important that this is in accordance with the Principal's wishes.What are the duties of the Principal’s health care provider in carrying out the Power of Attorney for Health Care? To comply with any power exercised by the Agent in accordance with the Power of Attorney for Health Care. If the health care provider is unwilling to comply with the Agent's health care decision, the Agent must arrange for the Principal to be transferred to another health care provider. Complete the Automated Forms Under the "Forms" Tab The Pro Bono Short Form Power of Attorney forms interview is an easy and efficient way for you to create and modify the appropriate POA forms for your pro bono client. The interview sits on a secure server on a separate website, called LawHelp Interactive. You will need to set up a free account in order to save your forms; all that is required to do so is an email address and password. Print out the Documents to Review With your Client Once you have completed the automated interview, print the documents to review with your client. Review each numbered section with your client; have him or her initial where required. Avoid Common Execution Errors The following are common execution errors to be avoided:No Agent or successor Agent(s) named;Principal has not signed the Power of Attorney form;Selection of conflicting medical directives (A Power of Attorney for Health Care and a Living Will may contradict each other as to removal of food and hydration, confusion may result as to which standard to apply). The revised Power of Attorney statute states that if there is a conflict between the Power of Attorney for Health Care and an Illinois Living Will Declaration, the Power of Attorney for Health Care controls;No stated preference of the Agent to serve as a guardian, if the Principal chooses to do so. If a court finds that the Principal lacks capacity, and that a guardian is required, the court may appoint a guardian. If the Principal has nominated the Agent to serve as guardian, should the court decide a guardian is necessary; the court may take the Principal's nomination into account;No competent witness;Co-Agents named.Obtain the Necessary Signatures and Notarization Have your client (the Principal) sign the Power of Attorney for Health Care on the signature line in the presence of one disinterested witness. You, as his/her attorney, should not witness the document. You may, however, notarize the documents, if you are an Illinois notary public. It should be noted that execution of the Power of Attorney for Health Care is effective without notarization. However, notarization is strongly recommended. Advise Client on What to do With the Completed Power of Attorney for Health Care It is important that the client's doctors have a copy of these documents. If the client regularly uses a certain hospital, the client should give them a copy as well. The client should give a copy to the people named as 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 any changes are made in the future, the client will make sure that they are notified.