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Illinois Power of Attorney for Health Care Tweaked for 2016

PAH cloud

One year ago I wrote about how the statutory Illinois Power of Attorney for Health Care (“PAH”) underwent a complete makeover starting in 2015. I know a lot of people were interested in this because it was one of my most popular posts over the last year.

Thankfully, we don’t have another complete makeover to digest. Those changes drew a varied response from attorney practitioners and consumers, and certain concerns and suggestions were made. Apparently in response, the Illinois legislature quickly put together a bill that made certain targeted changes to the new form. While the 2015 change was a wholesale new form and format, the 2016 changes simply make certain tweaks to the new form in response to some of the concerns that were raised.

The changes in Public Act 99-328 are effective as of 1/1/16. Here is a summary of the changes and key provisions:

1. Existing PAH’s are grandfathered as valid. Once again, the statutory changes include a “savings clause” providing that the changes do not invalidate any PAH created prior to 2016. Therefore, unless you don’t have a PAH or you want to change an existing PAH (e.g. to change agents), the changes does not require that you amend your estate plan.

2. Witness restriction eased. The list of those restricted from witnessing the execution of a PAH was changed to substitute “psychologist” in place of “mental health service provider.”

3. Witness attestation block corrected. Some practitioners pointed out that the witness attestation clause in the form did not match the list of restricted witnesses in the statute. Therefore, the form was changed to add advance practice nurse, dentist, podiatric physician, optometrist and psychologist among the list of impermissible witnesses.

4. Guardian nomination added back. The 2015 form omitted the language nominating the agent as guardian of the person, if a guardian is needed. This language is now inserted back in, below the agent nomination (we had added this back as an additional power).

5. Placement of successor agent nomination moved. One of the stranger parts of the 2015 form was the placement of the successor agent nomination after the principal and witness signatures. The awkwardness is now removed by moving this clause immediately below the first agent nomination in the form (we had already edited the form to do this).

6. Agent authorized to continue application for government benefits. The statute is amended to permit an agent (if no probate representative is appointed) to continue an application or appeal for government benefits of the principal.

7. When agent can start making decisions. Finally, in last year’s post I wrote about how the most confusing part of the new form was the check-box section relating to when the agent may “begin to make decisions for me.” The form provided just two choices, the first of which seemed to make the designation completely ineffective until a physician decides that the principal cannot make their own decisions.

The revised statute now provides a third option  — a “middle ground” choice that limits the agent’s decisionmaking ability until a physician’s determination, yet allows the agent access to records and to communicate with health care providers even prior to such determination. The middle option reads as follows:

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. Starting now, for the purpose of assisting me with my health care plans and decisions, my agent shall have complete access to my medical and mental health records, the authority to share them with others as needed, and the complete ability to communicate with my personal physician(s) and other health care providers, including the ability to require an opinion of my physician as to whether I lack the ability to make decisions for myself.

In January, I’ll also have brief summaries of several other new statutory provisions effecting trusts, estates, guardianship, property and health care.