Powers of Attorney Under the New Power of Attorney Statute 755 ILCS 45

1. Powers of Attorney Under the New Power of Attorney Statute 755 ILCS 45 79 West MonroeSuite 919Chicago, Illinois 60603312-376-1880312-376-1885 (Fax)1-866-519-2413 (Toll Free)Hours: Monday to Friday 9:00 a.m. – 5:00 p.m.Website: www.cdelaw.orgEmail: info@cdelaw.org

2. CDEL is a not-for-profit, 501(c)(3), organization serving a vulnerable population of Cook County residents through its mission to: • Provide free legal services to low-income elderly and/or persons with a permanent disability; and, • Foster the pro bono culture throughout the Chicago and surrounding Cook County legal community. • CDEL meets its mission in three ways: (1) providing direct legal representation; (2) engaging in pro bono initiatives; and (3) offering pro se assistance.

3. Understanding Advanced Directives Illinois Power of Attorney Act; Illinois Living Will Act Allows an individual to prepare an advance directive, knowing that, due to future disability or incapacity, Principal may not be able to make his own health care or property/financial decisions.

4. Types of Advance Directives • Durable Power of Attorney for Property • Durable Power of Attorney for Healthcare • Living Will

5. Illinois Power of Attorney Act ILCS 755 ILCS 45/ Revised as 1/1/2011, new forms went into effect on 7/1/2011

6. Requirements for Agent • Must be at least 18 years old; • Must be competent; and • Cannot be the Principal’s primary health care provider, i.e. physician or other licensed caregiver.

7. Executing the Power of Attorney Form • Must be signed by the Principal. • Must be signed by the Principalbefore one witness (although statute suggests two witnesses). • Power of Attorney for Property must be notarized. • Power of Attorney for Healthcare should be notarized, but is not a requirement. • Pay special attention who may or may not serve as a witness. • New forms have automatic revocation clauses and revoke previous Powers of Attorney

8. Duties of the Agent (Section 2.7) • No Legal Duty to Act -755 ILCS 45/2-7 • If Agent does act, Agent has a Fiduciary Duty to Principal • Due Care - shall be liable for negligent exercise 755 ILCS 45/2-7 • Not Liable for Errors in judgment 755 ILCS 45/2-7 • 755 ILCS 45/2-7.5 (Incapacitated principal) has been repealed and replaced by a new 755 ILCS 45/2-7, incorporating much of the language from 755 ILCS 45/2-7.5

9. Comparison of 2-7 and 7.5 with New 2-7 Section Former Sections • No duty to act, but duty of due care if Agent acts. • 2-7.5 was a separate section dealing with Incapacitated Principals New section • Same duties as former 2-7 • Incorporates 2-7.5 into 2-7 • Spells out possible punishments for breach of fiduciary duty.

10. Possible Punishments Under New 2-7 • Agent is not required to disclose to anyone except as directed under this section • If Agent violates fiduciary duty under the Act, the Agent could be liable to principal or principal’s successors in interest • i: restore value of principal’s property to what it would have been had the violation not occurred • ii: Reimburse principal or successor in interest for attorney’s fees and costs. • iii: Any other applicable legal or equitable remedies

11. Reliance on Document Purporting to Establish an Agency (Section 2-8) • Section 2-8 deals with the acceptance of a copy of a Power of Attorney • Revised 2-8, includes a form – “Agent’s Certification and Acceptance of Authority” • This Affidavit may be requested by any person being asked to rely on a copy of a Power of Attorney • The old 2-8 merely stated that a “reliant” could request, but did not create a form for, the Affidavit. • This is a major change to the statute and CDEL includes the Affidavit as part of its Powers of Attorney forms

12. Agency and Court Relationship (Section 2-10) Under old 2-10, Court may intervene if: • Principal Lacks Capacity to Modify AND • Breach of Fiduciary Duty or • Powers require interpretation. Revised 2-10. Court may intervene if: • Principal Lacks Capacity to Modify AND • Construe a Power of Attorney, • Review the Agent’s conduct • Grant appropriate relief, including compensatory damages.

13. New 2-10 (Cont.) • The court may order a guardian of the principal's person or estate • The court may construe the agency and instruct the agent, but the court may not amend the agency • If the court finds that the agent has not acted for the benefit of the principal, or that the agent’s action caused or threatened substantial harm to the principal's person or property in a manner not authorized or intended by the principal, then the agent shall not be authorized to pay or be reimbursed from the estate of the principal the attorneys' fees and costs of the agent in defending a proceeding brought pursuant to 2-10. • If agent’s action has caused harm to the principal’s person or property, the court may assess against the agent reasonable costs and attorney’s fees to a prevailing party.

14. New 2-10 (Cont.) • Successor Agents are defined, with roughly the same duties and actions as the primary Agent. • There is a form for Successor Agent’s Certification and Acceptance of Authority • Although Co-Agents are not allowed under the Statutory Power of Attorney, 2-10 has a form that governs the actions of Co-Agents, should the Power of Attorney appoint Co-Agents. • There is Co-Agent's Certification and Acceptance of Authority

15. New 2-10 (Cont.) • Section 2-10.6 is a brand new section, specifically dealing with foreign Powers of Attorney • A power of attorney executed in another state or country is valid and enforceable in this State if its creation complied when executed with: • (1) the law of the state or country in which the power of attorney was executed; • (2) the law of this State; • (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 • (4) the law of the state or country where the agent is domiciled or has a place of business. • A power of attorney executed in this State before the effective date of this amendatory Act of the 96th General Assembly is valid and enforceable in this State if its creation complied with the law of this State as it existed at the time of execution. • This clarifies under what circumstances an out state Power of Attorney may be acceptable in Illinois.

16. Power of Attorney for Property755 ILCS 45/Art. III • Allows the principal to delegate to an agent the power to make decisions regarding assets, finances, bank accounts, and other types of property, including real estate. The agent will make financial decisions, according to the principal’s wishes, when the principal is physically or mentally incapacitated. • The New Power of Attorney Act creates a new Power of Attorney for Property Form

17. Changes to New Form The New Form consists of: • (1) Notice to the Individual Signing the Illinois Statutory Short Form Power of Attorney for Property; • (2) Illinois Statutory Short Form Power of Attorney for Property; • (3) Notice to Agent.

18. Notice to Principal • Notice to Individual Signing the Illinois Statutory Short Form Power of Attorney for Property shall be on a separate sheet (coversheet) in 14-point type • If it is not in 14-point type it is still acceptable. The Power of Attorney will not be declared invalid if the type is smaller than 14-point.

19. Nonstatutory Powers of Attorney • If the Power of Attorney is not on the state form of power of attorney for property, the nonstatutory property powers: • (i) must be executed by the principal, • (ii) must designate the agent and the agent's powers, • (iii) must be signed by at least one witness to the principal's signature, and • (iv) must indicate that the principal has acknowledged his or her signature before a notary public. • However, nonstatutory property powers need not conform in any other respect to the statutory property power.

20. Witnesses • The Power of Attorney for Property only requires one witness to be valid. • Other jurisdictions may require more than one witness. • The statutory form offers the Principal the opportunity to add a second witness. • The second witness is optional but recommended.

21. Notice to Agent • The Power of Attorney for Property offers a “Notice to Agent” which is incorporated into the form. • The Notice to Agent explains what the Agent is to do and not to do. Also how the Agent is to sign documents. • This is a major change to the Statute and the Statutory Forms.

22. Notice to Agent (Cont.) • Agent must: • (1) do what Agent knows the principal reasonably expects you to do with the principal's property; • (2) act in good faith for the best interest of the principal, using due care, competence, and diligence; • (3) keep a complete and detailed record of all receipts, disbursements, and significant actions conducted for the principal; • (4) attempt to preserve the principal's estate plan to the extent actually known by the agent, if preserving the plan is consistent with the principal's best interest; and • (5) cooperate with a person who has authority to make health care decisions for the principal to carry out the principal's reasonable expectations to the extent actually in the principal's best interest.

23. Notice to Agent (Cont.) • The agent must not do any of the following: • (1) act so as to create a conflict of interest that is inconsistent with the other principles in this Notice to Agent; • (2) do any act beyond the authority granted in this power of attorney; • (3) commingle the principal's funds with Agent’s funds; • (4) borrow funds or other property from the principal, unless otherwise authorized; • (5) continue acting on behalf of the principal if Agent learn of any event that terminates this power of attorney or authority under this power of attorney, such as the death of the principal, Agent’s legal separation from the principal, or the dissolution of Agent’s marriage to the principal.

24. Notice to Agent (Cont.) • If you have special skills or expertise, Agent must use those special skills and expertise when acting for the principal. Agent must disclose Agent’s identity as an agent whenever you act for the principal by writing or printing the name of the principal and signing Agent’s own name “as Agent” in the following manner: “(Principal's Name) by (Agent Name) as Agent” • The meaning of the powers granted to you is contained in Section 3-4 of the Illinois Power of Attorney Act, which is incorporated into the body of the power of attorney for property document. • If Agent violates his/her duties as agent or act outside the authority granted to Agent, Agent may be liable for any damages, including attorney's fees and costs, caused by Agent violation. • If there is anything about this document or the duties that Agent does not understand, Agent should seek legal advice from an attorney.

25. Limitations on Witnesses • The revised Power of Attorney for Property Statute has limitations on who can serve as witnesses. • (a) Every property power shall bear the signature of a witness to the signing of the agency and shall be notarized. None of the following may serve as a witness to the signing of a property power or as a notary public notarizing the property power: • (1) the attending physician or mental health service provider of the principal, or a relative of the physician or provider; • (2) an owner, operator, or relative of an owner or operator of a health care facility in which the principal is a patient or resident; • (3) a parent, sibling, or descendant, or the spouse of a parent, sibling, or descendant, of either the principal or any agent or successor agent, regardless of whether the relationship is by blood, marriage, or adoption; • (4) an agent or successor agent for property. • (b) The prohibition on the operator of a health care facility from serving as a witness shall extend to directors and executive officers of an operator that is a corporate entity but not other employees of the operator.

26. Power of Attorney for Healthcare755 ILCS 45/Art. IV Health Care Power of Attorney - The General Assembly recognizes the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to decline medical treatment or to direct that it be withdrawn, even if death ensues. The right of the individual to decide about personal care overrides the obligation of the physician and other health care providers to render care or to preserve life and health. (755 ILCS 45-4.1)

27. General Principals • General principles. The health care powers that may be delegated to an agent include, without limitation, all powers 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 health care agency may extend beyond the principal's death if necessary to permit anatomical gift, autopsy or disposition of remains. Nothing in this Article shall impair or supersede any legal right or legal responsibility which any person may have to effect the withholding or withdrawal of life-sustaining or death-delaying procedures in any lawful manner, and the provisions of this Article are cumulative in such respect. (755 ILCS 45-4.3)

28. Limitations on Health Care Agencies • Neither the attending physician nor any other health care provider may act as agent under a health care agency; however, a person who is not administering health care to the patient may act as health care agent for the patient even though the person is a physician or otherwise licensed, certified, authorized, or permitted by law to administer health care in the ordinary course of business or the practice of a profession.(755 ILCS 45-4.3)

29. Power of Attorney for Healthcare New form makes several changes to the powers provided to the Agent. The new form makes changes to: • Anatomical Gifts • Medical Records • Decisions regarding disposition of Principal’s remains after Principal’s death • Life sustaining treatment

30. Anatomical Gifts The new form states Principal may choose to donate: • Any organs, tissues, or eyes suitable for transplantation or used for research or education • Specific organs • I do not grant my agent authority to make any anatomical gifts. • “In the event none of the options are initialed, then it shall be concluded that you do not wish to grant your agent any such authority”

31. Disposition of Remains Former Form stated: • My agent shall also have full power to authorize an autopsy and direct the disposition of my remains. New Form States: • My agent shall also have full power to authorize an autopsy and direct the disposition of my remains. I intend for this power of attorney to be in substantial compliance with Section 10 of the Disposition of Remains Act. All decisions made by my agent with respect to the disposition of my remains, including cremation, shall be binding. I hereby direct any cemetery organization, business operating a crematory or columbarium or both, funeral director or embalmer, or funeral establishment who receives a copy of this document to act under it.

32. Disposition of Remains • The new form provides much greater direction to the agent and to those who are asked to accept the Power of Attorney and the authority of an Agent. • It should also help to avoid the family fights over who is authorized to make decisions about the disposition of remains.

33. Medical Records Previous form stated: • My agent shall have the same access to my medical records that I have, including the right to disclose the contents to others. New form states: • I intend for the person named as my agent to be treated as I would be with respect to my rights regarding the use and disclosure of my individually identifiable health information or other medical records, including records or communications governed by the Mental Health and Developmental Disabilities Confidentiality Act. This release authority applies to any information governed by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and regulations thereunder. I intend for the person named as my agent to serve as my “personal representative” as that term is defined under HIPAA and regulations thereunder. • This continues for an entire page, as the Power of Attorney spells out detailed instructions about medical records and HIPAA.

34. Medical Records • The idea being that the Agent should be treated as the Principal would be treated in regards to medical records. • This should help to avoid issues about HIPAA and the concerns of medical providers. • Under HIPAA, the term used is “Personal Representative” and there is no mention of “Power of Attorney,” “Agent,” or “Attorney-in-fact under Power of Attorney.”

35. Withholding of Medical Procedures Former Act and form stated Principal could choose one (but not more than one) of the following: • 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. • 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. • 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.

36. Withholding of Medical Procedures New Act and new form states: • 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. • 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. • I want my life to be prolonged to the greatest extent possible in accordance with reasonable medical standards without regard to my condition, the chances I have for recovery or the cost of the procedures.

37. Withholding of Medical Procedures • This is a major change, especially to the second “choice” of the three choices. • The second choice under the previous form was not really relevant under reasonable medical standards. • The new form basically mirrors the language in an Illinois Living Will Declaration.

38. Limits on Witnesses Sec. 4-5.1. Limitations on who may witness health care agencies. • (a) Every health care agency shall bear the signature of a witness to the signing of the agency. None of the following may serve as a witness to the signing of a health care agency: • (1) the attending physician or mental health service provider of the principal, or a relative of the physician or provider; • (2) an owner, operator, or relative of an owner or operator of a health care facility in which the principal is a patient or resident; • (3) a parent, sibling, or descendant, or the spouse of a parent, sibling, or descendant, of either the principal or any agent or successor agent, regardless of whether the relationship is by blood, marriage, or adoption; • (4) an agent or successor agent for health care. • (b) The prohibition on the operator of a health care facility from serving as a witness shall extend to directors and executive officers of an operator that is a corporate entity but not other employees of the operator.

39. Illinois Living Will Act755 ILCS 35/ POA for Healthcare v. Living Will: A Living Will Declaration is a statement of intent through which a declarant may state his/her intent to refuse medical treatment where death is imminent. It does not authorize any specific person to make decisions about life sustaining treatment.

40. POA for Healthcare v. Living Will (Cont.) • Unlike the Power of Attorney, covers only situations in which client is terminally ill. • “Should I should have an incurable and irreversible injury, disease, or illness judged to be a terminal condition by my attending physician who has … determined that my death is imminent except for death delaying procedures, I direct that such procedures which would only prolong the dying process be withheld or withdrawn, and that I be permitted to die naturally with only the administration of medication, sustenance, or the performance of any medical procedure deemed necessary by my attending physician to provide me with comfort care.” • When a Power of Attorney and Living Will conflict, the Power of Attorney supersedes the Living Will.

41. Execution • Declarant must be at least 18 years old or an exempted minor. • Two witnesses are required. • Declarant may follow the statutory form or may have a greater hand in drafting Living Will’s specifications. • No notary required

42. Revocation • A declarant may revoke a Living Will at any time by: • Physically destroying the document; • Writing a revocation; or • Making an oral revocation.

43. Living Wills vs. Powers of Attorney • Many practitioners feel Living Will Declarations are superfluous for people with Powers of Attorney for Healthcare • However, there are three reasons why someone may want both a Power of Attorney for Healthcare and a Living Will Declaration. • 1) If Power of Attorney is not valid for some reason (Agent dies or becomes incompetent, Power of Attorney is revoked or declared invalid), the Living Will Declaration would still be valid as a statement of the intent of the Declarant • 2) If an Agent is making end-of-life decisions for the Principal, it may be helpful when making that most difficult of all decisions if the Agent has the Living Will Declaration stating the Declarant’s desire not to have his/her life prolonged. • 3) Missouri vs. Cruzan

44. Missouri vs. Cruzan • 497 U.S. 261 • In essence, the Supreme Court in Cruzan, stated that everyone has a constitutional right to refuse medical treatment. • However, if someone files suit on behalf of an incapacitated patient to direct that life sustaining treatment be discontinued, the state may demand “clear and convincing evidence” that the patient actually wanted the life sustaining treatment ended. • “There is no automatic assurance that the view of close family members will necessarily be the same as the patient’s would have been had she been confronted with the prospect of her situation while competent.” • “The State may require clear and convincing evidence of the patient’s wishes leads us to conclude that the State may choose to defer only to those wishes [of the patient], rather the confide the decision to close family members.”

45. Living Wills vs. Powers of Attorney • Finally, 755 ILCS 45/4-11, clears up the issue of which document would control. • If the principal has a living will under the “Illinois Living Will Act”, as now or hereafter amended, the living will shall not be operative so long as an agent is available who is authorized by a health care agency to deal with the subject of life-sustaining or death-delaying procedures for and on behalf of the principal.

46. Living Wills vs. Powers of Attorney • So… • If there is a Living Will and Power of Attorney for Healthcare, the Power of Attorney controls.

47. Conclusion • All competent adults have the right to draft and execute Powers of Attorney and Illinois Living Will Declarations. • However, the Principal (or Declarant) must have capacity at the time of execution for the Power of Attorney (or Living Will) to be effective. • They are Advance Directives to be executed now and to be used at some point in the future if the Principal (or Declarant) lacks the ability to make personal decisions about their health, medical treatment, property or end of life decisions.

48. Powers of Attorney Under the New Power of Attorney Statute 755 ILCS 45 79 West MonroeSuite 919Chicago, Illinois 60603312-376-1880312-376-1885 (Fax)1-866-519-2413 (Toll Free)Hours: Monday to Friday 9:00 a.m. – 5:00 p.m.Website: www.cdelaw.orgEmail: info@cdelaw.org