Power of Attorney for Healthcare Updated 2016

Recent Changes to the Illinois Power of Attorney for Health Care Law

By: Michaeline Gordon

In Illinois, an individual may designate an agent to make health care decisions and receive medical information and records on his or her behalf. The decision-making powers that may be delegated to an agent, include, without limitation: “all powers that an individual may have to be informed about and to consent to or refuse or withdraw any type of health care for the individual and all powers a parent may have to control or consent to health care for a minor child.”

A statutory form for this purpose is provided in the Illinois Power of Attorney Act. Estate planning attorneys, along with a statutory Durable Power of Attorney, routinely prepare this form to appoint an agent for finances, as part of the estate planning process. Preparing these documents in advance allows for appropriate time to discuss important issues with an attorney and the designated agents, rather than in an emergency situation.

In recent years, there have been significant changes to the Illinois statutory power of attorney for health care, which was completely overhauled in 2015. The following discussion broadly summarizes the most recent changes to the Illinois Power of Attorney Act, effective January 1, 2016:

 

Agent Access to Medical Records. The amended statute allows an individual to grant his or her agent access to medical records and information, while retaining an individual’s power to make his or her own health care decisions. Under this provision, the agent has the same rights as the individual to examine and consent to the disclosure of medical records.

Decisional Capacity Has Been Defined. The revised statute adopts the definition of “decisional capacity” from the Illinois Health Care Surrogate Act. Under the statute, “decisional capacity” is the ability to understand and appreciate the nature and consequences of a decision that is being made concerning medical treatment or choosing to forego life-sustaining care and having the ability to reach and communicate an informed decision on the matter as determined by the attending physician. A physician may determine that an individual is unable to make health care decisions for himself or herself only if the individual lacks decisional capacity.

Modified Limitations On Who May Witness Health Care Agencies. The principal and a witness must sign the Power of Attorney for Health Care document. The revised statute modifies the list of those restricted from witnessing the execution of a health care agency. The modified list no longer prohibits “mental health providers” from serving as witnesses; however, it does prohibit the authorization of “psychologists” and other licensed professionals such as attending psychologists. The list also excludes advance practice nurses, dentists, podiatric physicians, and optometrists from acting as witnesses.

Application for Government Benefits Following Death of Principal. The revised statute permits agents to continue an application (if the application was made during the life of the principal) or appeal for government benefits for the principal at any time during which there is no executor or administrator appointed for the principal’s estate.

 

Recommendations:

Although the revised statute provides that previously executed powers of attorney will remain valid, it may be beneficial to update medical powers of attorney, particularly if they were executed prior to 2015, in order to take advantage of the new provisions presented in the Illinois Power of Attorney Act. Using the most recent statutory form, which is most familiar and recognizable to health care providers, is generally advisable to avoid legal review and scrutiny. Updating your health care power of attorney may also be advisable if you:

  • have experienced recent changes in your health or medical status;
  • want to change your agent(s);
  • seek to provide your agent with updated health care instructions; or you
  • have special considerations that would make it advantageous to make your medical information known to your agent without relinquishing decision-making authority:

If you have questions regarding the implications of the revised statute, would like professional advice or assistance updating or executing a health care power of attorney, or have any other estate planning questions, please feel free to contact Michaeline Gordon at (312) 660-5964.

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