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. They are often used to prepare for future situations when you can no longer make these types of decisions for yourself. In this relationship, you are the Prinicipal, or the person for whom the decisions are made. The person you select to make the decisions for you is the Agent.
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 limited as you want. You can do this by giving the Agent the power to make many decisions or only a few decisions.
Who can be an Agent
Generally, an Agent must be:
- Over the age of 18;
- Able to make his or her own decisions;
- Younger and healthier than you; and
- Someone other than your primary healthcare provider (i.e. your doctor or caregiver).
It is important to note that some paid caregiver agreements do not allow caregivers to act as an agent under POAs. Many people pick a family member to act as their Agent. However, you don’t have to pick someone in your family. Your Agent can also be a(n):
- Unmarried partner;
- Trusted advisor; or
The important thing is to pick someone you know well and who you trust. The individual must be willing to act for you if you need help with your financial or medical problems. Before you name your Agent, you should contact that person. Confirm that he or she is willing to act for you. You should also carefully discuss the Agent’s responsibilities and your medical philosophy. These steps will ensure that your Agent will follow your instructions and make decisions that are consistent with your wishes.
The Agent you appoint doesn’t have to be local. The Agent doesn't even have to be a resident of Illinois. However, in the event of an emergency, it is helpful if the agent lives nearby.
You cannot have more than one Agent acting at the same time. In Illinois, if you want to name more than one Agent, you must make one of them your primary Agent. If that Agent dies or 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. Therefore, you want to make sure the Agent is willing to accept the charge and take action. As discussed above, it is important to make sure your Agent understands the appointment.
Once the Agent begins 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 of all transactions.
Agents must manage your accounts and property as if they were in your shoes. If Agents act appropriately, they are not financially responsible for your affairs.
Power of Attorney for Property
The Illinois Power of Attorney Act specifies the transactions that Agents are allowed to manage. Under a POA for property, Agents can:
- 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; and
- Manage Social Security, unemployment, and military benefits.
However, your Agent may not make gifts or change beneficiaries without specific authorization. Also, your Agent can never sign or change your will.
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:
- 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; or
- 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; and
- Talk with your loved ones to help come to a decision.
It is important that your POA for Healthcare reflects your specific personal and health preferences. You can indicate your perferences by limiting the decisions an Agent can make for you. For example, if some types of treatment are against your religion, you can indicate in your POA that the Agent cannot consent to those treatments.
Selecting an Agent you trust
By properly selecting an Agent and completing the POA documents, you can avoid future pressure from people who may not have your best interests in mind. Picking an Agent you trust may be the most important step to ensure that your wishes are followed. It can also help avoid future exploitation.
A POA for Property may be effective immediately unless you limit the time period. When the POA is effective, there are certain duties that limit when the Agent can act. Your Agent has a duty to act for your benefit, for example. This means the Agent will either act after you lose the capacity to make your own decisions, or the Agent will act after you have specifically instructed them to act. An Agent that acts before those times violates their duty. To further protect yourself, you may want to limit the document's valid timeframe. Additionally, you should pick an Agent you know will not act before it is appropriate. You can also add other limits to the document. You can specify, for example, that the POA is valid only after your doctor says that you can no longer make your own decisions. Generally, no one can handle financial affairs on your behalf without a POA for Property.
Similar considerations apply to a POA for Healthcare. Serious illness and accidents are unpredictable. By planning ahead, you can 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 a POA for Property if you retain the ability to make your own decisions. Further, for both types, 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 abuse if you are unable to make your own decisions in the future. If fraud, undue influence, or a violation of an Agent's duty of care do occur, there are many remedies available. These remedies include:
If you are a victim of POA fraud, a civil suit may be filed under a number of Illinois state laws, including:
- 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 is to make proper plans and decisions 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. You can also be assured that your instructions will be carried out if you lose the ability to make your own decisions.
Think very carefully about signing a POA and naming an Agent. It is important to remember that your Agent generally acts when you are most vulnerable and can no longer make decisions for yourself.