The Illinois General Assembly has revised the Power of Attorney Act 23 years after it was first enacted. Although the new law is not effective until July 1, 2011, there seems to be no impediment to start using the new forms now. Moreover, non-statutory forms remain valid, and existing statutory forms will remain in force after the new law becomes effective unless they are specifically revoked. The new forms for powers of attorney for property and health care are designed to offer more protection to principals and those that rely on them, but they are more complicated to complete and more burdensome to agents.

The Key Changes

What are the major changes in the law and the forms?

  • they require more duties of the agent, add oversight of the agent’s conduct, and expand the remedies against an agent who misuses his or her authority
  • they limit who may witness the forms
  • they provide notice to the property agent of his or her responsibilities, and recognize co-agents in a non-statutory property power
  • as to health care, they add provisions relating to federal privacy laws and disposition of remains and substitutes accurate medical terminology for “irreversible coma”

Expanded Notice on Property Power

The property power has an expanded notice to the principal and a new notice to the agent detailing his or her duties. It requires the agent to use “due care, competence and diligence and to keep accurate accounts. If effectiveness is delayed, the power of attorney will start on a “written determination by your physician that you are incapacitated.” The Act specifies who can sue the agents or inspect his or her records and permits the agent to be charged in case of misfeasance with costs, attorneys’ fees and the amount necessary to restore the principal. There is also a certificate the agent can sign that financial institutions can rely on as to the agent’s authority.

Some Simplification of the Health Care Form

The form of the health care power has been simplified somewhat and made more readable but, like the property power, it still is long and complicated. The agent is given clearer access to the principal’s medical records and authority to direct an autopsy and disposition of remains. It revokes prior powers provided it says so. Most significantly, of the three alternative statements for withdrawal of life-sustaining treatment, the second statement currently involving an “irreversible coma,” is replaced by medically recognizable “incurable or irreversible condition,” “permanent unconsciousness” or “terminal condition.” In addition, the third statement about prolonging life to the extent possible is modified by “in accordance with reasonable medical standards.”

The three alternative end-of-life statements in the form rarely are entirely suitable, but the new form is a step in the right direction. Ideally, they should be tailored to the principal’s wishes. Many people would like to combine the first two but this is not permitted in the standard form. Curiously, unlike the Illinois Health Care Surrogate Act, which applies if there is no agent under a health care power, life-sustaining treatment is not defined, and dialysis, advanced dementia and certain other procedures are not specified. These shortcomings suggest that one should consult someone medically knowledgeable and prepare one’s own statement.

Most important of all, it is essential that the principal fully inform the agent as to the principal’s treatment wishes.