Friday, January 16, 2015

Illinois Estate Planning Law Changes for 2015 - Health Care Power of Attorney Statutory Short Form

January 1, 2015 ushered into law several significant changes to Illinois estate planning law.  In this series, we'll take a look at some of them and how these changes might affect your estate plan.  Let's begin by taking a look at a very important part of every estate plan - the Power of Attorney Act.   Unlike a Will, a Power of Attorney authorizes someone (your "agent") to act on your behalf while you are still living.

The Illinois Power Attorney Act, 755 ILCS 45, has four Articles. The Title (Article I), Durable Powers of Attorney (Article II), the Statutory Short Form POA for Property (Article III), and Powers of Attorney for Health Care (Article IV).  Article IV is the only one that was changed effective January 1, 2015 (there were a few changes to Article II made effective in July 2014) and is the focus of this post.

The Health Care Article IV of the Power of Attorney Act contains a Statutory Short Form Health Care POA within it, and this form was changed substantially.  Before getting to the changes, it is important to note that the statute itself explicitly states that the "short form" is not an exclusively required form.  It is permissible to have a Health Care POA in another format, such as the previous statutory short form, even if executed after January 1, 2015.  Similarly, if you signed a Health Care POA in the old form, your document if properly prepared, witnessed, and signed is still valid.

With that, here are some highlights of the changes to the Statutory Short Form Power of Attorney for Health Care:

1.  Beefed up Notice, preamble section.  The beginning of the document is a Notice explaining the documents purpose, uses, and limitations.  This section has bee significantly expanded, and now includes a "Frequently Asked Questions" style section that will be helpful to many, particularly those who complete the document without time to consult with their attorney.

2.  Agent's Powers Presumed.  After the notice there is a fill-in-the-blank section to appoint your agent, and then the document identifies four areas in which your agent is presumed to have authority to act on your behalf.  These include (1) treatment, (2) admission and placement, (3) medical records, and (4) organ and tissue donation and burial or cremation.  In the previous form, some of these powers were presumed, and some required affirmative confirmation first.  For example, in the previous form, the section on organ donation presumed that leaving the section blank did NOT authorize the agent to donate the principal's organs.  In the new form, the presumption is reversed.  

3.  Timing of Agent Authority.  There is now a "checkbox" for two timing options - effective immediately at signing, or effective "when I cannot make decisions for myself" as determined by your physician.

4.  Life Sustaining Treatment.  There are two checkbox options here, instead of the three options from the previous form.

There are also some changes to the section of the statute dealing with who can properly witness the Health Care POA document, which should be reviewed before signing.  The changes to the form are significant and merit careful review before signing, due to the change in implied powers as compared to the previous form.  It is advisable to consult with your attorney before signing a health care power of attorney.

2 comments:

  1. Unlike a Will, a Power of Attorney authorizes someone (your "agent") to act on your behalf while you are still living.
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