Apr 22, 2011

New Illinois Power of Attorney forms effective in 2011

New Illinois statutory forms for the Power of Attorney for Property and the Power of Attorney for Health Care went into effect this past summer. On July 22, 2010, the governor signed Illinois House Bill 6477, a comprehensive update of the Illinois Power of Attorney Act. While the law was signed in 2010, the changes were not effective until July 1, 2011.

Powers of Attorney are often referred to as “disability documents,” which come into effect during your lifetime in the event of incapacitation and terminate upon death. The Powers of Attorney allow you to elect someone to act as your agent in the event you are unable to make healthcare or financial decisions on your own. Powers of Attorney are instrumental in the case of an emergency and are important for anyone over the age of 18 to have in place.  This has become an increasing issue for college students as parents wish to ensure that in an emergency they have access to the necessary medical information. Unfortunately, payment of tuition does not entitle a parent to information regarding a child’s health once the child reaches 18. In 1996, the Health Information Portability and Accountability Act (HIPAA) became effective and compliance with the HIPAA “Privacy Rule” came into effect in 2003. As a result of HIPAA privacy regulations, children who are legal adults should have Powers of Attorney in place so as to allow parents to obtain medical information or make medical decisions if the adult child is unable to do so for him or herself. 

Powers of Attorney forms are statutorily driven whereby states often provide guidance on language to incorporate or even provide a sample form. While the statutory forms are often easily accessible, if they are not properly executed, they are deemed invalid. Therefore, clients are encouraged to work with an attorney to ensure proper execution so that their wishes can be respected. Most states will respect Powers of Attorney from other states. However,  when moving to a new state it is recommended that new Powers of Attorney be executed that adhere to the state guidance. In the event of an emergency, it is beneficial to have documents in place with which the healthcare provider or financial institution is accustomed. 

The main purposes for the changes to the Powers of Attorney (both for property and healthcare) are to make instructions more easily understandable and to expand the protection for the principal (the one designating these powers to a named individual agent). The documents also elevate the standard of care for agents from “due care” to “acting in good faith using due care, competence and diligence.” In addition, each form includes a revocation of all prior powers of attorney to avoid any confusion regarding an agent’s authority to act in the cases where multiple Powers of Attorney have been executed.   

The new Power of Attorney for Property was drafted to make it easier to read and understand. The “Notice” section at the beginning of the form was changed from all-caps to 14-point font in an effort to encourage principals to read the document. In addition, the new form includes a place for the principal to initial confirming that the principal has read the notice. The power of attorney for property also provides a space for a second witness to attest to the principals signature, which may be required in other states. Lastly, the new Power of Attorney for property also provides separate notice to the agent which informs the agent’s responsibilities and duties.

The new Power of Attorney for Health Care was also drafted to make it more readable and understandable. Like the Power of Attorney for property, the notice to the principal is on a separate page and provides a space for the principal to initial to indicate having read the notice.  Most important, the new form incorporates extensive HIPAA language to ensure that an agent will have access to the principal’s healthcare records to make informed medical decisions. In Illinois, the Power of Attorney for Health Care also includes guidance for an agent regarding the level of life sustaining treatment you wish to receive (if any). The new form describes these options in a different manner than the prior version. Lastly, the new form also allows the agent to direct the disposition of remains. However, to ensure your agent is informed of your particular wishes regarding the disposition of remains, an Appointment of Agent to Control Disposition of Remains should also be prepared, which provides detailed instructions regarding your wish to be cremated or where you would like your body to be buried. 

Everyone over the age of 18 should have Powers of Attorney in place. For those with existing Powers of Attorney, it may be advisable to execute new power of attorney documents using the updated forms. Having your existing estate plan reviewed may be the best decision for you and your loved ones.

As always, please feel free to contact me with any questions or concerns.

* Contributing writers/editors: Lindsey Paige Markus, Attorney; Susan Baker and Katia Piciucco, Law Clerks