A Power of Attorney for Health Care allows a person (the “Principal”) to delegate to another person (the “Agent” or “Attorney-In-Fact”), which is often a family member or trusted friend, the power to make health care decisions on behalf of the Principal if he or she is unable to make such decisions. In Illinois, it is authorized under the Illinois Power of Attorney Act (755 ILCS 45/1) and may be used instead of or together with a Living Will. The Power of Attorney for Health Care can be revoked at any time by burning or tearing it up or by written revocation. Its power automatically ends upon the death of the Principal.
The Power of Attorney for Health Care is a flexible document in that the Principal can limit or broaden the health care decision-making authority of the Agent. It permits the Principal to provide his or her Agent with a set of instructions regarding medical treatment such as basic or advanced medical procedures, the withholding of food and fluids, and the use of life-prolonging treatment.
If an individual does not have a Power of Attorney for Health Care and then become incapacitated, a guardianship proceeding may be necessary to appoint a guardian to make any health care decisions. This process can be long, expensive, and has an emotional cost, especially if family members disagree as to who should be elected as guardian.
Power of Attorney for Health Care Requirements
In order to execute an Illinois Power of Attorney for Health Care, the Principal must be 18 years of age and a resident of Illinois. The Agent must also be 18 years of age and cannot be the Principal’s attending physician or other individual administering health care to the patient at the time of reference; however, a person who is not administering health care to the patient may act as an Agent for the Principal even though the person is a physician or otherwise authorized to administer health care in the ordinary course of business or the practice of a profession. Finally, the Power of Attorney for Health Care must be signed by the Principal and a witness.
Selecting an Agent
When selecting an Agent, it is advisable that the Principal designate one or more successor Agents to act in case the primary agent is unable to act. The Principal should select an Agent who will act in accordance with his or her interests and values, even if those values differ from the Agent’s own. The Agent will decide what medical treatments you receive and whether life support measures should be started or stopped. Finally, the Agent should be someone who can stay calm in the presence of mounting pressure and will not be swayed from carrying out your wishes by family members who may not agree.
It is clear that the Power of Attorney for Health Care plays an important role in an estate plan. We welcome the opportunity to discuss the use of a Power of Attorney for Health Care and other estate planning vehicles with you. Please contact any of our estate planning attorneys.