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Illinois Power of Attorney for Health Care Gets Makeover in 2015

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It seems like just yesterday that I was revising our forms and explaining the brand-new ‘Illinois Statutory Short Form Power of Attorney for Health Care’ (“PAH”). Three years goes by quickly. Apparently, the legislature had second thoughts about the July 2011 rewrite because they’ve yet again rewritten the Illinois statutory form PAH.

On August 26, 2014, Governor Quinn signed Senate Bill 3228 (read here), amending the Illinois Power of Attorney for Health Care statute, effective January 1, 2015.

The form itself has been renamed ‘My Power of Attorney for Health Care’ (no reference to Illinois) and reformatted partly in a Q&A style intended to look less like a legal document. The statutory change was made at the urging of the Illinois State Medical Society (ISMS), which argued that the existing form “is confusing and uses too much technical language” and “requires college-level English proficiency to understand.” The new form is intended to be written at ‘8th’ and ’10th’ grade levels.

The core purpose of the PAH — to designate an agent to make health care decisions for you when you are unable to make them for yourself — is unchanged.  But here are 8 key provisions in the new law to know:

1. Existing PAH’s are grandfathered as valid. The first thing to know is that the statute includes a “savings clause” providing that the changes do not invalidate any PAH validly created prior to 2015. Therefore, unless you don’t have a PAH or you want to change an existing PAH (e.g. to change agents), this statutory rewrite does not require that you amend your estate plan.

2. New Q&A notice and format. The major change that instantly stands out is the newly styled ‘Notice’ to the individual signing (the ‘principal’), which includes a lengthy Q&A section (around 5 pages worth). The nine questions posed — and answered — are:

  • What are the things I want my health care agent to know?
  • What kind of decisions can my agent make?
  • Whom should I choose to be my health care agent?
  • What if my agent is not available or is unwilling to make decisions for me?
  • What will happen if I do not choose a health care agent?
  • What if there is no one available whom I trust to be my agent?
  • What do I do with this form once I complete it?
  • What if I change my mind?
  • What if I do not want to use this form?

While I question the necessity of including a detailed FAQ within the form (rather than separately), the answers are generally pretty good and help to drive home the importance that every adult designate health care agents.

3. Statutory form qualification. Existing law requires a statutory PAH form be in ‘substantially’ the same form as the form proscribed by statute. The revised law now says that “no specific format is required for the statutory health care power of attorney other than the notice must precede the form.” Whoa! The goal of this language is likely to make sure that PAH’s are not rejected due to form errors or minor edits. While this is understandable, we now have not only three different statutory health care forms just within the last 3.5 years, but after 1-1-15 we will also have a sort of ‘free form’ law that technically allows any kind of form to be considered as a statutory form (as long as the notice section is included).

This appears to run contrary to a main goal of statutory forms in general — to ensure that third parties can easily recognize the form and understand the language employed without excess scrutiny. This seems particularly important for health care professionals who need to focus on the patient rather than on forms, especially in emergency type situations. So while some additional provisions may be appropriate to include (and the form includes a section to do so), I’d still caution against any wholesale or complete rewriting of the basic form itself.

4. Additional witness restrictions. The PAH requires one witness signature, but no notary. The amended statute expands the categories of persons prohibited from signing as witness to include the following licensed professionals providing services to the principal: the attending physician, advanced practice nurse, physician assistant, dentist, podiatric physician, optometrist and mental health service provider (and relatives of all such professionals). While an operator of a health care facility (directors and executive officers) cannot serve as witness, this prohibition does not extend to non-owners chaplains or social workers, nurses, and other employees of the facility.

The witness must also be at least 18 years of age. As a reminder, the witness also cannot be a parent, sibling or descendant (or spouse of any of them) of the principal or any designated agent, whether the relationship is by blood, marriage or adoption.

5. Who may (not) act as “Health Care Agent.” ‘Health Care Agent’ is a newly defined term for the individual that is given broad authority to make health care decisions for the principal. The Health Care Agent must be at least 18 years of age and cannot be a health care provider or any “health care professional” (new term used to clarify/expand the meaning of a ‘provider’) who is administering health care to the patient.

6. Health Care Agent as HIPAA-compliant personal representative. The revised statute extends and clarifies that the PAH serves as a HIPAA release as to the agent and that the agent serves as a “personal representative” under state and federal law, including HIPAA (unless specifically otherwise restricted in the PAH). This allows an agent to access, review and demand medical records, which the health care professional would otherwise be forbidden from providing to anyone, due to HIPAA regulations.

7. Life-sustaining treatment. Perhaps the most controversial changes relate to the discussion of life-sustaining treatments. The existing law includes references and definitions for “incurable or irreversible condition,” “permanent unconsciousness” and “terminal condition” as trigger-points. Under the revised law, these three definitions are deleted. Instead, the agent is instructed to weigh the burdens vs. benefits of proposed treatments, and the principal may — but is not required to — choose between two polar opposite additional check-box statements relating to quality of life vs. quantity of life, as follows:

SELECT ONLY ONE STATEMENT BELOW THAT BEST EXPRESSES YOUR WISHES (optional):

___ The quality of my life is more important than the length of my life. If I am unconscious and my attending physician believes, in accordance with reasonable medical standards, that I will not wake up or recover my ability to think, communicate with my family and friends, and experience my surroundings, I do not want treatments to prolong my life or delay my death, but I do want treatment or care to make me comfortable and to relieve me of pain.

OR

___ Staying alive is more important to me, no matter how sick I am, how much I am suffering, the cost of the procedures, or how unlikely my chances for recovery are. I want my life to be prolonged to the greatest extent possible in accordance with reasonable medical standards.

The ‘additional statements’ are intended as optional guidance to the named agent(s). The choices are pretty black-and-white though, while many might prefer more nuance. We’ve long provided clients with additional optional ‘Medical Directives’ that provide more detailed guidance to the agent under various different situations. Again, the alternative choices in the new PAH are optional, so if one doesn’t agree with either statement, then the section can be skipped and guidance can be provided to the agent in other ways.

8. When agent can start making decisions. Finally, the revised PAH form includes a new check-box section for two alternative choices as to when the agent may begin to “make decisions for me.” The provision reads as follows:

I AUTHORIZE MY AGENT TO (please check any one box):

___ Make decisions for me only when I cannot make them for myself. The physician(s) taking care of me will determine when I lack this ability.
        (If no box is checked, then the box above shall be implemented.)
 

OR

___ Make decisions for me starting now and continuing after I am no longer able to make them for myself. While I am still able to make my own decisions, I can still do so if I want to.

Quite frankly, I am still trying to fully wrap my hands around the language employed. My sense is that the implication of the second choice is that even if the physician believes that you have the ability to make decisions for yourself, if you prefer at any point that your physician take direction directly from your agent, the second choice allows for that. On the other hand, if the first option is chosen, then as long as the physician believes that you have the ability to make your own decisions, the agent cannot provide direction. At first blush, the second choice seems as if one is giving up some level of autonomy, but the final sentence clarifies that is not the intent and that the agent cannot override your own decisions (unless perhaps the physician determines that you lack the ability to make decisions — in which case the agent seemingly has authority under the first choice anyway).

Conclusion

The Power of Attorney for Health Care remains one of the most important legal documents a person can sign. The new PAH provides a FAQ section that may help individuals to more fully understand the purpose, importance and implications of the document. Ideally, powers of attorney — for both health care and property — are considered, executed and maintained in coordination with a broader comprehensive estate plan (including wills, beneficiary designations, and sometimes trusts).

If you have questions about creating a PAH along with your estate plan, please call us at (847) 991-2250 for a consultation. And please share this information with family and friends who may benefit from being aware of the changes to the Illinois Power of Attorney for Health Care — share buttons are provided below for Facebook, Twitter and Email.

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