Generally, what is a Durable Power of Attorney?
A Durable Power of Attorney (DPOA) is a written document that you use to appoint someone to make decisions for you in the future in case you are unable to make them yourself. It is usually better than a living will because it can provide for a wide range of situations that may arise as you get older. A Power of Attorney has nothing to do with an actual attorney. There are two different kinds of Powers of Attorney, one for health care and one for property.
What is meant by Durable?
Before Illinois created Durable Powers of Attorney, whenever there was a Power of Attorney in place, it was automatically revoked once a person became incompetent. With the Durable Power of Attorney, it remains effective even following a persons becoming incompetent.
Describe the Durable Power of Attorney for Health Care.
In this form you can give someone the power to make a full range of medical decisions for you. This could include consent to medical treatment, admission to the hospital, admission to long-term care facilities, disposition of your body after your death, and almost any type of health care decision that would have to be made. In a Power of Attorney for Health Care you may also express your desires about what should happen to you if you have a terminal illness and are maintained only through heroic means. In this way, a Power of Attorney for Health Care is like a living will, but it is a much broader and more powerful instrument. It does not just cover terminal illness, but also provides for what should happen in a whole range of situations that may arise as you get older. A Power of Attorney for Health Care may become effective immediately, or you can state that it should only become effective if your physician or more than one physician certifies that you are no longer able to make these decisions yourself.
Describe the Durable Power of Attorney for Property.
With this form you can give someone the power to make decisions about your money and property. For example, you could authorize someone to deposit and withdraw money from your bank account, pay your bills, deal with insurance, transfer real estate, and make other types of business transactions and decisions. You can limit the scope of the power of attorney to specific types of transactions or you can make the power as broad as you like. Again, the power can be effective immediately or only upon the certification of a physician. Click on the link below to learn more about Power of Attorney for Property.
When should a Durable Power of Attorney (advance directive) be executed?
When a person turns 18 he or she can execute a power of attorney. For the health-care POA in particular, it is important to point out advance directives aren't for the elderly only.
Is it ever too late to execute a DPOA?
Yes, it can be too late for a property or health-care POA; the point when decisional capacity is already gone. In the Health Care Surrogate Act, 755 ILCS 40/1 et seq, decisional capacity is defined at section 10 as "the ability to understand and appreciate the nature and consequences of a decision regarding medical treatment or forgoing life-sustaining treatment and the ability to reach and communicate an informed decision in the matter as determined by the attending physician."
Who should act as an agent under the DPOA?
A person of good repute who has the principal's best interest at heart and is assertive but not a controller makes the ideal agent. The best health-care agents are attuned to matters of personal care. The best POA-for-property agents are good money managers. If the spouse has decisional capacity, he or she will probably be named the first agent in either advance directive. Competent, trusted adult children probably come next.
Can there be co-agents?
Although The Power of Attorney Act's statutory forms preclude the nomination of co-agents, they can be named in a non-statutory instrument. This could be useful as part of a check and balance in a property POA. With the health-care POA, where the need for the agent to act may be sudden and urgent, health-care providers should not have to deal with a committee. Therefore, it is usually a mistake to name more than one concurrent health-care agent. Often people want to name their children as co-agents because they don't want to show favoritism. Sometimes this can be dealt with by naming one child the primary health-care agent and another the primary property agent.
When should the agent’s power begin?
Typically, the agent's power to act will begin with the principal's signing of the power or it may be delayed until some event defined in the instrument occurs. Immediately effective powers, especially for the health-care POA, are easier for the agent to exercise. Springing powers take effect when the person asked to rely upon them determines that the specified event has occurred. Most frequently the event is a doctor’s certification that the principal can no longer handle his/her affairs. This ease of use by the agent can be both good and bad. Especially for a property POA, many clients are not comfortable giving agents immediate authority. For clients who are young and healthy, the POA may exist for many years before it's used. Your client might also lack absolute trust in the contemplated agent. If the agent's authority is springing, clearly describe the triggering event in the instrument. Third parties must be able to determine when the power takes effect.
Should I name successor agents?
Naming a full complement of back up agents is important, especially for the health-care POA, where the first named agent may not be readily available. If a client has difficulty coming up with an agent for the property POA, bank trust departments are sometimes willing to serve.
Should the statutory forms be customized?
Here are custom-provision alternatives for health-care POAs.
Minor children. If you have minor children, consider adding the instruction that the agency includes the health care of the children, which is contemplated by the Act but not included in the statutory form. 755 ILCS 45/4-3. A tragic car accident could make this one crucial.
Organ donation. The amendment to section 4-10 of the Act, effective January 1, 2000, describes the agent's authority regarding anatomical gifts but does not contemplate a whole body gift for scientific research, which could be incompatible with specific organ donations. Consider the Gift of Hope <http://giftofhope.org>, the Anatomical Gift Association of Illinois <www.anatomical-gift.org>, and The Eye Bank <www.mebtc.org> for more information about their options.
Clinical trials, faith-related concerns. Consider adding provisions (1) granting authority to enter the principal in clinical trials and to execute any related informed consents, if that would be in the principal's best interest and (2) providing for special concerns arising out of the principal's religious affiliation, if any.
As for property POAs, you can give the agent authority to continue or begin gifting programs; create, amend or revoke trusts and to require payment of principal or income to the agent (this power will be subject to the agent's obligations to preserve the principal's estate plan and trusts under section 2-9 of the Act); make transfers to a community spouse or others in Medicaid planning; and, as indicated above, provide for deadlock if co-agents have been designated.
Is there anyway to provide supervision over the Agent?
Providing some principal-protective oversight of the property agent is important if there is any question about the named agent's intentions or ability. Requiring the agent to provide successor agents periodic accountings could provide oversight and help prepare the successors should they need to serve.
What should be done with my DPOA following execution?
For health-care POAs, a copy should be offered to the principal's primary care physician and to any specialists with whom he or she deals and to any health-care facilities where treatment is sought. Also, at least the first named agent should hold a copy of the health-care POA and know where the original is.
Are my Illinois DPOAs effective in other states?
Portability; the recognition of Illinois documents in other jurisdictions; should be more likely because of section 2-4 of the Act, which recognizes powers of attorney "whenever and wherever executed." Presumably, POAs executed in Illinois by an Illinois resident would be reciprocally recognized in the other 49 states.
Nonetheless, if you spend considerable time in another jurisdiction or go out of state for health care, you should consider executing an advance directive specific for the jurisdiction in question. Short of that, you might expressly state in the Illinois POA that the principal, although an Illinois resident, wishes the power of attorney to be honored outside of Illinois just as it would be at home and grants those relying upon it all the immunity Illinois health-care providers would enjoy.
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The Olson Law Firm, LLC
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