Estates & Powers of attorney

A Power of Attorney for Health Care is a legal document that lets a person choose someone to make health care decisions for them.

The “principal” is the person who makes the power of attorney (POA) document. They give someone else, an “agent”, the power to make decisions.

The “agent” is the person named in a power of attorney document. The POA document gives the agent the power to make decisions on behalf of the principal.

The POA can also include the principal's wishes regarding life-sustaining treatments.

People 18 years and older can create a POA and name an agent. The principal must be mentally competent. This means they must be able to make decisions for themselves and understand what they are signing. If a principal is not mentally competent at the time POA is signed, the POA is invalid and cannot be used.

POAs can be as broad or limited as the principal wants. The principal can give the agent the power to make many decisions or only a few decisions. They also choose the timing of the POA. It can be effective immediately, or only when they are incapacitated and can no longer make decisions for themselves. 

A few examples of possible decisions an agent can make include:

• Health care choices,
• Medical treatment,
• Admitting the principal to a hospital or other facility, including a mental health facility,
• Discharging the principal  from a hospital or other facility,
• Making end-of-life decisions,
• Authorizing an autopsy, organ donation, or donation of the principal’s body to medical research, and
• Deciding what happens to the principal’s body when they die.

An agent can also can be given the power to:

• Talk with doctors or other health care providers about the principal’s condition,
• See medical records and approve who else can see them, including mental health records,
• Give permission for medical tests, medicines, surgery, or other treatment,
• Choose where the principal receives care and who provides it,
• Accept, withdraw, or decline treatments designed to keep the principal alive if they are near death or not likely to recover,
• Decide to donate the principal’s organs or whole body if the principal has not already made this decision themselves,
• Decide what to do with the principal’s remains if they have not already made plans, and
• Talk with the principal’s loved ones for help with decisions.

Remember, the principal can also limit the decisions that the agent may make for them. For example, some types of treatment might be against the principal's religious beliefs. If so, the principal can prevent the agent from allowing that treatment by saying so in the power of attorney.

Agents must act in good faith, An honest effort to do something for the benefit of the principal. They must use due care, competence, and diligence. Also, they must follow the principal’s wishes as much as they can.

It depends on what the principal says in the Power of Attorney document. The principal chooses the timing of the POA. The agent can be given their powers effective as soon as the POA is signed. They can also say in the POA that the agent does not get any powers only when the principal is incapacitated and can no longer make decisions for themselves.

The principal's doctor will determine if they are incapacitated. The doctor must then follow the agent's decisions.

No. As long as the principal has decision making capacity, as in they can express their wishes and understand the decisions they are making, they have the final decision making power. This means that if an agent wants to make a decision that the principal disagrees with, they can’t. The principal’s decision making authority always comes first.

Generally, an agent must be:

• Over the age of 18,
• Able to make their own decisions, and
• Someone other than the principal’s primary health care provider (i.e. doctor or caregiver) for a health care POA. 

Some paid caregiver agreements do not allow caregivers to act as agents under POAs.

Agents should be someone the principal knows well and who they trust. Agents don't have to act just because they are named. Therefore, an agent should be willing to accept the responsibility and take action.

Before naming someone their agent, a principal should contact that person. Agents don't have to act just because they are named. People should make sure the agent is willing to accept the responsibility of being their agent and take action when needed.  People should carefully discuss the agent’s responsibilities and their wishes related to the power of attorney. These steps will help ensure that the agent follows the principal’s instructions and makes decisions that are based on the principal's wishes.

No, the agent does not have to be someone in the principal’s family. Many people pick a family member to act as their agent. However, the agent can also be a:

• Friend,
• Unmarried partner,
• Trusted advisor, or
• Neighbor.

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.

No, a principal cannot have more than one agent acting at the same time. In Illinois, there can only be one, primary agent. If the primary agent dies or can’t make decisions for the principal, then a second agent (the “successor agent”) would act. Naming successor agents is generally a good idea because sometimes an agent becomes sick and can't handle decisions for the principal. Or, the agent could decide they do not want to handle the decisions.

The principal can make changes to their existing Power of Attorney for Health Care. The principal can ask someone who is at least 18 years old to help them with this. The changes must be made in writing, signed, and dated. 

Yes. The principal can end a health care power of attorney at any time. An agent can also resign their status as agent.

Learn more about ending a Power of Attorney for Health Care.

A principal can build in a 30-day delay of any future revocation when they write their power of attorney. This means if the principal chooses to revoke Cancel or take back or destroy the power of attorney in the future, they will have 30 days before the revocation is official to change your mind. Electing to add a 30-day period for reflection is meant to help prevent the principal from regretting their decision to revoke regret later.

If a person does not have a health care POA, and they become unable to make decisions for themselves, their family and your doctors may make certain health care decisions for them. This is includes during emergency medical situations. The Health Care Surrogate Act says that family members and doctors can make health care decisions for a person about whether to continue or go without life-sustaining treatment. The doctor must ask the certain people what to do, in the following order:

1. Court-appointed personal guardian,
2. Spouse,
3. Adult Any person 18 years old or over children,
4. Parents,
5. Adult siblings,
6. Adult grandchildren,
7. Close friend of the patient,
8. Court-appointed guardian of the estate, All of the property a person owns at their death and
9. Temporary custodian, if a juvenile. For misdemeanor offenses, a defendant is considered a juvenile if the offense occurred when they were 17 or younger.For felony offenses, a defendant is considered a juvenile if the offense occurred when they were 16 or younger.

The doctor will go to a court-appointed personal guardian first. If there is no court-appointed guardian, then the doctor will go to the spouse. If there’s no spouse, then the doctor will continue down the list.

The above order cannot be changed. The person who would have the legal right to make end-of-life medical decisions may not be who someone would choose to be in charge. For example, unmarried partners are not considered spouses in Illinois.

A power of attorney for health care gives people control over how decisions are made for them and who they want to carry out those decisions. Choosing someone as a trusted agent can help ensure that a person’s wishes will be followed.

A POA health care agent's powers automatically end at the principal's death. However, the principal can authorize their agent to see to their remains, such as burial, cremation or organ donation. A POA agent has no power over your belongings or finances at your death.

The term “durable power of attorney” is not used in Illinois law. In other states, some call their POAs “durable” POAs when they are designed for the agent to keep decision-making power when the principal loses their capacity to act. In Illinois, POAs can be written to give an agent power when a person loses their decision making ability. The document itself is just not called a “durable power of attorney.” It’s just a “power of attorney.”

A person may wish to consider getting a power of attorney for property. An agent for POA for property can handle the principal’s money and make financial decisions for you. This includes filing their taxes, making sure their rent or mortgage A loan given by a bank that is used to help someone buy a home is paid, and hiring a lawyer Someone who represents clients in courts or who gives legal advice if they need one.

People can choose a different person to be their agent in a POA for property. The agent for POA for property and POA for health care do not need to be the same person.

No, people can create powers of attorney on their own. Advanced planning can get complicated, though. If you’d like to speak with a lawyer, Someone who represents clients in courts or who gives legal advice you can use Get Legal Help to find one near you.