The POA Act amendment that wasn't

Have you gotten a press release saying the Illinois Department of Public Health has “mandated new language” for healthcare POAs? Wondering what's up with that? Helen Gunnarsson got to the bottom of it for the May Illinois Bar Journal, and we're giving our Illinois Lawyer Now faithful an early look. Read what she has to say. Some ISBA members whose practices include the preparation of health care powers of attorney recently did double-takes when they read a recent press release from a legal forms company. The release read, "The State of Illinois Department of Public Health has mandated new language for the Durable Power of Attorney for Healthcare form, effective January 1, 2010, and is requiring that any such documents executed after that date use the new language to assure their validity. Living wills and similar documents executed in 2009 or earlier remain valid, and do not have to be updated." Wondering if they’d missed either an important amendment to the Power of Attorney Act, 755 ILCS 45/1-1 et seq, or an announcement from the Department of Public Health, and concerned about the instruments they’d prepared for their clients, members posted a flurry of queries and comments to ISBA’s online transactional discussion group. The IBJ took notice of the discussion and tracked down the straight story. Bottom line: the Power of Attorney Act has not been stealthily amended, the Department of Public Health has not issued any dire directives concerning powers of attorney, and lawyers do not need to call all of their clients back in to execute new powers of attorney. Health Care Surrogate Act (not POA Act) changes Representatives from the forms company said the press release and changes in the company’s form was prompted by PA 96-0765, which took effect January 1, 2010. That act amended section 65 of the Health Care Surrogate Act, 755 ILCS 40/65, to permit a do-not-resuscitate (DNR) advance directive to be witnessed by only one person instead of requiring two witnesses. It also requires the witness to attest that the person signing the directive had the opportunity to read the form and signed or acknowledged his signature or mark on the form in the witness’s presence. It did not amend the Power of Attorney Act. Asked whether it had issued any directive regarding power of attorney forms or language, the Department of Public Health advised that it had not. IDPH Communications Manager Melaney Arnold said in an e-mail that “Public Act 96-0765…changed the language [of the Health Care Surrogate Act]; the Illinois Department of Public Health did not mandate this change. The Illinois Department of Public Health is simply required to update the DNR form to reflect the change in the law.” Arnold said IDPH has not mandated either the language to be included in any instrument or the usage of any particular form. “The law does not provide the authority for the Illinois Department of Public Health to mandate the use of the new forms or anything else within the Health Care Surrogate Act.” Citing subsection (c) of the amended statute, Arnold observed “In fact, the law allows for the latitude in the use of ‘forms’”: “(c) The DNR Advance Directive may, but need not, be in the form adopted by the Department of Public Health pursuant to Section 2310-600 of the Department of Public Health Powers and Duties Law (20 ILCS 2310/2310-600).” Though the press release cautions that “[h]ospitals and doctors will be well within their rights to disregard improperly executed directives – which include those directives furnished on obsolete forms,” Champaign lawyer Mark C. Palmer said the “failure to honor an ‘old’ POAHC would go against 755 ILCS 45/4-7 and the general purpose of the statute.” Palmer also cited paragraph 4-1 of the Power of Attorney Act, which provides “the form of health care agency in this Article is not intended to be exclusive and other forms of powers of attorney chosen by the principal that comply with Section 4-5 of this Article may offer powers and protection similar to the statutory short form power of attorney for health care.” Agreeing, Chicago lawyer Mary Cascino, who chairs ISBA’s Trusts and Estates Section Council, said, “Minor changes in wording will not invalidate a HCPOA.” Genuine (proposed) changes to the POA Act Practitioners will be interested to know that a bill that would make significant changes to the Power of Attorney Act is under consideration by the General Assembly. Cascino said her section council and ISBA’s Elder Law Section Council have worked together with elder advocacy and health care industry groups and fiduciaries on HB 6477, which, if passed, will amend the statute to provide greater protections to principals. Among other things, the legislation provides notice to those assuming the agent role of their duties and responsibilities. It also adds the duties of good faith, competence, and diligence to agents’ duty of due care, Cascino said, and expands the categories of people who would be entitled to ask for accountings from agents and provides for awards of attorney’s fees against agents in the event they violate the statute. Additionally, the legislation addresses the trouble agents often have getting institutions recognize and honor their authority by providing a sample “Certification and Acceptance of Authority” form that agents must execute and furnish upon request. The legislation’s text and status are available on the General Assembly’s Web site at www.ilga.gov.  -- Helen Gunnarsson