Powers of Attorney
A Power of Attorney (POA) is a legal document that you can use to name a person to make decisions for you if you can’t make these types of decisions for yourself; or if you want someone else to make the decisions for you. There are 2 different types of POAs :
- For Property: used for financial decisions
- For Healthcare: used for healthcare decisions
You may make these documents as broad or as limited as you want, to give the Agent the power to make as many or as few decisions as you want.
Who can be an Agent
Generally, an Agent must be:
- Over the age of 18 and able to make his or her own decisions.
- Younger and healthier than you
- Someone other than your primary healthcare provider (i.e. your doctor or caregiver).
Also, it is important to note that some paid caregiver agreements do not allow caregivers from acting as an agent under POA documents. Many people pick a family member to act as their Agent, but you don’t have to pick someone in your family. You can also pick the following people:
- Unmarried partner
- Trusted advisor
The important thing is to pick someone you know well, who you trust, and who is willing to act for you if you need help with your financial or medical problems. Before you officially sign the documents and name your Agent, contact the person you want to appoint to confirm that he or she is, in fact, willing to act for you. You should carefully discuss the Agent’s responsibilities and your medical philosophy before naming your Agent, to make sure that your Agent will follow your instructions and make decisions that are consistent with your wishes.
The Agent doesn’t have to be local, or even a resident of Illinois. But, it is helpful for emergency cases if the agent is a local.
You may be thinking of naming more than one person, but you cannot have more than one Agent acting at the same time. This is called co-agency, and it’s not allowed. In Illinois, if you want to name more than one Agent, you must name a primary Agent, and if that Agent dies before, or if he can’t make decisions for you, then your second Agent (the “Successor Agent”) would act for you.
Agents don’t have to act just because they are named, so make sure the Agent is willing to accept the charge and take action. It is important to speak with your Agent before naming them and signing any document to make sure they understand the appointment.
Agents don’t have to act, but once they begin acting on your behalf, they must put your welfare and interests first. For instance, if the Agent manages your finances, he or she must be able to provide receipts and records showing what transactions were made.
Agents are not financially responsible for your affairs if they act appropriately. Basically, Agents must manage your accounts and property as if they were in your shoes.
Power of Attorney for Property
The Illinois Power of Attorney Act specifies transactions Agents are allowed to manage. Under a POA for property, Agents can conduct certain legal and economic transactions, including the ability to:
- Buy, sell, rent or lease real estate or other property
- Control bank accounts (including paying bills)
- Contribute to or withdraw from a retirement plan
- Deal with any type of insurance or annuity policy
- Handle tax matters
- Buy and sell stocks
- Control safe deposit boxes
- Hire an attorney to file or defend against lawsuits
- Run a business
- Borrow money and mortgage property
- Handle an estate
- Manage Social Security, unemployment, and military benefits
However, your Agent may not make gifts or change beneficiaries without specific authorization. Further, your Agent can never sign or change your will.
Notice to Agent: Agent must and must not do the following: The Notice to the Agent under the POA for Property states that the Agent has the following duties:
- Do what the Principal reasonably expects the Agent to do with the Principal’s property;
- Act in good faith for the best interest of the Principal, using due care, competence, and diligence;
- Maintain complete and detailed records of all receipts, disbursements, and significant actions taken on behalf of the Principal;
- Attempt to preserve the Principal’s estate plan; and
- Cooperate with the person who has the authority to make health care decisions for the Principal – this may be the Agent under Power of Attorney for Healthcare.
The Notice to the Agent under the POA for Property states that the Agent cannot do this:
- Engage in conflict of interest
- Act beyond the authority granted in the POA for Property
- Commingle funds
- Borrow funds from the Principal, unless he has authorization
- Continue acting on behalf of the Principal after he learns that the power is terminated (in the event of the death of Principal, revocation of duties, dissolution of marriage)
Power of Attorney for Healthcare
An Agent with a POA for Healthcare can make healthcare decisions for you. This includes directing or refusing healthcare interventions or stopping treatment. The Agent can also:
- Talk with doctors or other healthcare providers about your condition
- See medical records and approve who else can see them
- Give permission for medical tests, medicines, surgery, or other treatment
- Choose where you receive care and who provides it
- Accept, withdraw, or decline treatments designed to keep you alive if you are near death or not likely to recover
- Decide to donate your organs or whole body if you have not already made this decision yourself
- Decide what to do with your remains if you have not already made plans
- Talk with your loved ones to help come to a decision
You can limit the decisions an Agent can make for you. For example, if some types of treatment are against your religion, you can prevent your Agent from allowing those treatments by saying this in the POA. It is important that your POA for Healthcare reflects your specific personal and health preferences.
Selecting an Agent you trust
Using a POA is an excellent way to avoid future problems by appointing the right Agent as your decision maker. By properly completing these documents prior to losing capacity, you can avoid pressure from people who may not have your best interests in mind. Picking an Agent you can trust may be the most important step to ensure that your wishes are followed and to avoid future exploitation.
Unless you limit the time period when your POA is in effect, your POA for Property may be effective immediately. Your Agent has a duty to act for your benefit, and that means only acting after you lose the capacity to make your own decisions, or after you have specifically instructed the Agent to act. Acting before then would go against that duty. It is important to pick an Agent who you know will not exceed his or her authority and act before it is appropriate. One way to do this is by limiting the timeframe of when the document becomes valid. For example, you may limit the document to be valid only when your doctor says that you can no longer make your own decisions. Generally, no one can handle certain financial affairs on your behalf without these documents.
Serious illness and accidents are unpredictable. By planning ahead, you can make efforts to ensure you will get the medical treatment that you want. You should choose an Agent who will make decisions on your behalf that are in line with your personal values and wishes. Although the idea behind these documents is that your Agent will make decisions as you would have made them, the law allows your Agent to make decisions to direct or refuse health care interventions or withdraw treatment. POAs that are completed correctly do not become invalid once you lose the legal capacity to make decisions, so it is important to know that your Agent will follow through with your wishes.
Although you may revoke a POA for Healthcare at any time, you may only revoke POA for Property if you retain the ability to make your own decisions. Further, for both POA for Property or Healthcare, you can only sign new documents appointing a new Agent if you have the capacity to sign new documents. So, it is best to consider the consequences of revocation before taking these steps.
Fraud and abuse
One of the main reasons for drafting and signing a POA is to avoid being a victim if you become unable to make your own decisions. But, if someone is a victim of POA fraud, undue influence, or if your Agent violates his or her duty of due care to act in your best interest, there are many remedies available. Those remedies include:
If you are a victim of POA fraud, a civil suit may be filed under a number of Illinois state laws, including the:
- Illinois Adult Protective Services Act
- Nursing Home Care Act
- Financial Exploitation of an Elder or Person with a Disability law
Also, there may be criminal penalties for the Agent’s violations. The best way to protect yourself in the future is to make the proper decisions and the proper plans in advance. Signing a POA may be one of the best methods of protection from future potential neglect or abuse, should you lose the capacity to make personal decisions. A POA provides great peace of mind, as you know that your wishes will be followed and your instructions will be carried out if you lose the ability to make your own decisions.
Think very carefully if you want to sign a POA and who you want to name as an Agent. It is important to remember that your Agent generally acts when you can no longer make decisions for yourself. This means that the Agent will be acting when you are most vulnerable.