The new Health Care Power of Attorney became effective on January 1, 2015. Its use may have been slow at first, but eventually it will pick up. There was a lead article on it in the April 2015 issue of the Illinois Bar Journal. I find that I do not like the form because I believe it is a dumbed-down version and more at a junior high level than the previous form.

It is my understanding that it originated because the medical societies were pushing for a different form of power of attorney that they thought would be easier to use. The new Power of Attorney, in my opinion, brings the doctors more into the picture than the former power of attorney forms did. In effect, the doctors have more input and the agents have a little less power.

The Act states under Section 4-10 that this is not considered an exclusive form and it also states that “no specific format is required for the statutory health care power of attorney other than the notice must precede the form.”

The form is available on the ISBA website. In analyzing the new power of attorney form, I separated it into two sections. The first section is the notice requirements, which run about 6 pages. At the end of the notice requirements, I have a place for initials. This initialing is my addition to the form.

The second part is the power of attorney itself. This part runs about 5 pages and starts on a new page and, yes, the notice is longer than the form.

The form itself does not provide an area for organ donation as the prior form did. It could obviously be added. This could be addressed in the portion regarding SPECIFIC LIMITATIONS. At that part of the form, you could also deal with the disposition of remains, such as cremation. Perhaps clients will need to provide agents with a file of any signed agreements.

There is a section of the form which allows you to direct the time decision making begins. In the first choice, the physician will determine when the principal lacks the ability to make a decision. In the second choice, the principal authorizes the agent to begin making decisions at the execution of the form. The form states that, if no box is checked, the first provision will apply and, in that case, the doctor has additional authority. This is akin to placing a springing power in the doctor’s hands. The second provision, in my opinion, is written in an awkward fashion and, on the surface, you would wonder why you would want to pick it. However, in reviewing the form, I think most clients will want to make the second choice. The appropriate box is checked, not initialed.

The life support selections are optional. The first option talks about quality of life and requires the attending physician to make a finding before the agent can
remove life support. Once again, the doctor has some power and the agent has some limitations.

The second option states that staying alive is more important to the principal and “I want my life to be prolonged to the greatest extent possible in accordance with reasonable medical standards.”

The witness statement is most concerned with who the witness is not (because there are limitations as to who a witness can be). The witness does not acknowledge that the principal had the opportunity to review the above form or acknowledge his or her signature or mark on the form in the presence of the witness. This is a watered down version of witnessing.

Also, there are no specimen signatures on the form.

So, what if you have been using the old form to date and have not started to use the new form. You will have to make some corrections on the form that was signed under the prior act. The new act requires that the notice provisions be attached to the form. You can actually use the old form as long as you have the notice provisions attached to it.

If a power of attorney was signed using the prior form but after January 1, 2015, then I believe you need to prepare the notice and have it mailed to the clients for initialing. The best practice would be to have them come in and sign a whole new form, but we all know how difficult it is to get clients to come back in. I would suggest as a short term solution sending the clients the appropriate number of notices and have them forward one back to you to attach to your copy. The clients should be instructed to put the notice provision in front of the health care power of attorney and attach it. When the clients come in at a later date, they can sign a whole new form.

One final criticism of the form is that it takes more time to explain this form to clients than the remainder of the estate plan.

I welcome any comments at jhoreled@att.net. 