Senate Bill 1877, a bill that has been sent to the Governor, deletes some language in last year's revision of the Illinois Power of Attorney Act. The revised form has not yet been posted on the Department of Public Health website, and once the Governor signs SB1877, the new form will not include a revision that would have allowed the agent to have automatic access to a patient's medical records upon execution of the statutory form. This memo summarizes the Power of Attorney for Health Care law, and describes the major changes made by Public Act 96-1195 and SB1877, which become effective July 1, 2011.

While other forms may be used to establish a health care power of attorney, health care providers are probably most familiar with the statutory health care power known as the "Illinois Statutory Short Form Power of Attorney for Health Care (POAHC)" which can be found on the Department of Public Health's website under Advance Directives. Patients can continue to use the current form indefinitely, even after the Department posts the new form, reflecting PA 96-1195 and SB1877 changes.

Summary of Health Care Power Law, including PA 96-1195 Changes
A Power of Attorney permits a person (the principal) to delegate decision-making authority, for both financial and health care matters, to someone the principal trusts (the agent). According to the law, agents must "act in good faith for the benefit of the principal using due care, competence, and diligence in accordance with the terms of the agency." Health care providers should read a copy of the document that establishes a health care agency, to make sure the agent is not acting contrary to its terms.

Principal's Incapacity. A Power of Attorney for Health Care becomes operational upon a certain date, or when the principal becomes "incapacitated," if there is no predetermined date. Under the law, a principal is considered incapacitated when the principal is determined disabled by a court, or when:

1. A physician has examined the patient and has determined that the patient lacks decision making capacity; and
2. That physician has signed a written record of this determination; and
3. The written record is delivered to the agent.

Reliance on Agent's Authority. Health care providers may rely upon a copy of a signed and witnessed POAHC, as long as there is no actual knowledge that the POAHC was improperly executed. Failing to comply with an agent's direction, without reasonable cause to doubt the agent's authority, could result in civil liability. If there is any question about the agent's authority, PA 96-1195 will permit providers to demand that the agent complete an "Agent's Certification and Acceptance of Authority." The only other option is to challenge the agent's authority in court.

Immunity. Good faith reliance on a valid Power of Attorney for Health Care protects health care providers from civil or criminal liability, or discipline for unprofessional conduct. For example, an agent may ask that a death-delaying medication be withheld. Unless the provider has reason to doubt the agent's good faith, the medication should be stopped, even though it may hasten the principal's death.

One Witness. The POAHC requires one witness to sign the form, stating that the principal has signed the form, or acknowledged his or her signature, or mark, on the form, in the witness's presence. On occasion, a patient executes a POAHC while in the hospital. A hospital employee may witness the signing or acknowledgement, but not if the employee is a director or executive officer of the hospital. The principal's attending physician or mental health service provider, and any of their relatives, are also prohibited from serving as a witness.

Life Sustaining Treatment. The new POAHC continues to permit the principal to choose one general statement, among three statements that will serve as guidance to the agent, in the event the agent must make a decision about life-sustaining treatment, including the withdrawal of food and water. The principal may choose one of the following statements:  

• Do nothing to prolong my life, if the burden of treatment outweighs the benefits; or
• Do everything to prolong my life, unless I am:
  • In a state of 'permanent unconsciousness,"
  • Suffering from an "incurable or irreversible condition;" or
  • Suffering from a "terminal condition."
• Do everything to prolong my life, in accordance with reasonable medical standards, without regard to my condition, chances for recovery, or costs.

The second statement replaces the outdated term "coma" with more clinically relevant language taken from the Illinois Healthcare Surrogate Act. Those terms are more fully defined in the law and are determined by the principal's attending physician.

The third statement was changed to allow for consideration of reasonable medical standards when prolonging life could be medically futile. If religious beliefs dictate, a principal can strike-through "in accordance with reasonable medical standards" because a principal may, for any reason, place limitations on the withholding of life-sustaining measures. Health care providers should check the language in the POAHC to make sure the principal did not add any specific limitations.

Medical Record. The new form will contain language specific to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). Agents are "personal representatives" as that term is used in the HIPAA regulations, and have full access to the principal's medical records, including mental health records. Agents may release the principal's protected health information to third parties.

Duration of Agency . An agency relationship continues until the principal's death, except that a POAHC permits an agent to make an anatomical gift, authorize an autopsy, and direct the disposition of remains, including cremation.

Revocation . A health care agency may be revoked by the principal "without regard to his mental or physical condition." A principal may indicate his or her revocation by destroying the document, or by oral or written expression.

Out-of-State Power of Attorney for Health Care Forms. Illinois law continues to recognize the validity of other health care power forms, so long as they contain these basic elements: 

1. The principal's signature;
2. The agent's name;
3. The agent's powers; and
4. The agent is not the principal's health care provider.

Other Powers. Agents have the same right to visit the principal in the hospital as is granted to the principal's spouse or adult child. Agents may contract for any and all types of health care services and facilities on behalf of the principal, and to financially obligate the principal in doing so. However, an agent must have authority under a statutory property power to use the principal's money to pay the principal's health care costs.