Public Act 099-0328

SB0159 Enrolled LRB099 03385 HEP 23393 b

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois,

represented in the General Assembly:

Section 5. The Illinois Power of Attorney Act is amended by

changing Sections 4-5.1, 4-10, and 4-12 as follows:

(755 ILCS 45/4-5.1)

Sec. 4-5.1. Limitations on who may witness health care

agencies.

(a) Every health care agency shall bear the signature of a

witness to the signing of the agency. No witness may be under

18 years of age. None of the following licensed professionals

providing services to the principal may serve as a witness to

the signing of a health care agency:

(1) the attending physician, advanced practice nurse,

physician assistant, dentist, podiatric physician,

optometrist, or psychologist mental health service

provider of the principal, or a relative of the physician,

advanced practice nurse, physician assistant, dentist,

podiatric physician, optometrist, or psychologist mental

health service provider;

(2) an owner, operator, or relative of an owner or

operator of a health care facility in which the principal

is a patient or resident;

(3) a parent, sibling, or descendant, or the spouse of

a parent, sibling, or descendant, of either the principal

or any agent or successor agent, regardless of whether the

relationship is by blood, marriage, or adoption;

(4) an agent or successor agent for health care.

(b) The prohibition on the operator of a health care

facility from serving as a witness shall extend to directors

and executive officers of an operator that is a corporate

entity but not other employees of the operator such as, but not

limited to, non-owner chaplains or social workers, nurses, and

other employees.

(Source: P.A. 98-1113, eff. 1-1-15.)

(755 ILCS 45/4-10) (from Ch. 110 1/2, par. 804-10)

Sec. 4-10. Statutory short form power of attorney for

health care.

(a) The form prescribed in this Section (sometimes also

referred to in this Act as the "statutory health care power")

may be used to grant an agent powers with respect to the

principal's own health care; but the statutory health care

power is not intended to be exclusive nor to cover delegation

of a parent's power to control the health care of a minor

child, and no provision of this Article shall be construed to

invalidate or bar use by the principal of any other or

different form of power of attorney for health care.

Nonstatutory health care powers must be executed by the

principal, designate the agent and the agent's powers, and

comply with the limitations in Section 4-5 of this Article, but

they need not be witnessed or conform in any other respect to

the statutory health care power.

No specific format is required for the statutory health

care power of attorney other than the notice must precede the

form. The statutory health care power may be included in or

combined with any other form of power of attorney governing

property or other matters.

(b) The Illinois Statutory Short Form Power of Attorney for

Health Care shall be substantially as follows:

NOTICE TO THE INDIVIDUAL SIGNING

THE POWER OF ATTORNEY FOR HEALTH CARE

No one can predict when a serious illness or accident might

occur. When it does, you may need someone else to speak or make

health care decisions for you. If you plan now, you can

increase the chances that the medical treatment you get will be

the treatment you want.

In Illinois, you can choose someone to be your "health care

agent". Your agent is the person you trust to make health care

decisions for you if you are unable or do not want to make them

yourself. These decisions should be based on your personal

values and wishes.

It is important to put your choice of agent in writing. The

written form is often called an "advance directive". You may

use this form or another form, as long as it meets the legal

requirements of Illinois. There are many written and on-line

resources to guide you and your loved ones in having a

conversation about these issues. You may find it helpful to

look at these resources while thinking about and discussing

your advance directive.

WHAT ARE THE THINGS I WANT MY

HEALTH CARE AGENT TO KNOW?

The selection of your agent should be considered carefully,

as your agent will have the ultimate decision making authority

once this document goes into effect, in most instances after

you are no longer able to make your own decisions. While the

goal is for your agent to make decisions in keeping with your

preferences and in the majority of circumstances that is what

happens, please know that the law does allow your agent to make

decisions to direct or refuse health care interventions or

withdraw treatment. Your agent will need to think about

conversations you have had, your personality, and how you

handled important health care issues in the past. Therefore, it

is important to talk with your agent and your family about such

things as:

(i) What is most important to you in your life?

(ii) How important is it to you to avoid pain and

suffering?

(iii) If you had to choose, is it more important to you

to live as long as possible, or to avoid prolonged

suffering or disability?

(iv) Would you rather be at home or in a hospital for

the last days or weeks of your life?

(v) Do you have religious, spiritual, or cultural

beliefs that you want your agent and others to consider?

(vi) Do you wish to make a significant contribution to

medical science after your death through organ or whole

body donation?

(vii) Do you have an existing advanced directive, such

as a living will, that contains your specific wishes about

health care that is only delaying your death? If you have

another advance directive, make sure to discuss with your

agent the directive and the treatment decisions contained

within that outline your preferences. Make sure that your

agent agrees to honor the wishes expressed in your advance

directive.

WHAT KIND OF DECISIONS CAN MY AGENT MAKE?

If there is ever a period of time when your physician

determines that you cannot make your own health care decisions,

or if you do not want to make your own decisions, some of the

decisions your agent could make are to:

(i) talk with physicians and other health care

providers about your condition.

(ii) see medical records and approve who else can see

them.

(iii) give permission for medical tests, medicines,

surgery, or other treatments.

(iv) choose where you receive care and which physicians

and others provide it.

(v) decide to accept, withdraw, or decline treatments

designed to keep you alive if you are near death or not

likely to recover. You may choose to include guidelines

and/or restrictions to your agent's authority.

(vi) agree or decline to donate your organs or your

whole body if you have not already made this decision

yourself. This could include donation for transplant,

research, and/or education. You should let your agent know

whether you are registered as a donor in the First Person

Consent registry maintained by the Illinois Secretary of

State or whether you have agreed to donate your whole body

for medical research and/or education.

(vii) decide what to do with your remains after you

have died, if you have not already made plans.

(viii) talk with your other loved ones to help come to

a decision (but your designated agent will have the final

say over your other loved ones).

Your agent is not automatically responsible for your health

care expenses.

WHOM SHOULD I CHOOSE TO BE MY HEALTH CARE AGENT?

You can pick a family member, but you do not have to. Your

agent will have the responsibility to make medical treatment

decisions, even if other people close to you might urge a

different decision. The selection of your agent should be done

carefully, as he or she will have ultimate decision-making

authority for your treatment decisions once you are no longer

able to voice your preferences. Choose a family member, friend,

or other person who:

(i) is at least 18 years old;

(ii) knows you well;

(iii) you trust to do what is best for you and is

willing to carry out your wishes, even if he or she may not

agree with your wishes;

(iv) would be comfortable talking with and questioning

your physicians and other health care providers;

(v) would not be too upset to carry out your wishes if

you became very sick; and

(vi) can be there for you when you need it and is

willing to accept this important role.

WHAT IF MY AGENT IS NOT AVAILABLE OR IS

UNWILLING TO MAKE DECISIONS FOR ME?

If the person who is your first choice is unable to carry

out this role, then the second agent you chose will make the

decisions; if your second agent is not available, then the

third agent you chose will make the decisions. The second and

third agents are called your successor agents and they function

as back-up agents to your first choice agent and may act only

one at a time and in the order you list them.

WHAT WILL HAPPEN IF I DO NOT

CHOOSE A HEALTH CARE AGENT?

If you become unable to make your own health care decisions

and have not named an agent in writing, your physician and

other health care providers will ask a family member, friend,

or guardian to make decisions for you. In Illinois, a law

directs which of these individuals will be consulted. In that

law, each of these individuals is called a "surrogate".

There are reasons why you may want to name an agent rather

than rely on a surrogate:

(i) The person or people listed by this law may not be

who you would want to make decisions for you.

(ii) Some family members or friends might not be able

or willing to make decisions as you would want them to.

(iii) Family members and friends may disagree with one

another about the best decisions.

(iv) Under some circumstances, a surrogate may not be

able to make the same kinds of decisions that an agent can

make.

WHAT IF THERE IS NO ONE AVAILABLE

WHOM I TRUST TO BE MY AGENT?

In this situation, it is especially important to talk to

your physician and other health care providers and create

written guidance about what you want or do not want, in case

you are ever critically ill and cannot express your own wishes.

You can complete a living will. You can also write your wishes

down and/or discuss them with your physician or other health

care provider and ask him or her to write it down in your

chart. You might also want to use written or on-line resources

to guide you through this process.

WHAT DO I DO WITH THIS FORM ONCE I COMPLETE IT?

Follow these instructions after you have completed the

form:

(i) Sign the form in front of a witness. See the form

for a list of who can and cannot witness it.

(ii) Ask the witness to sign it, too.

(iii) There is no need to have the form notarized.

(iv) Give a copy to your agent and to each of your

successor agents.

(v) Give another copy to your physician.

(vi) Take a copy with you when you go to the hospital.

(vii) Show it to your family and friends and others who

care for you.

WHAT IF I CHANGE MY MIND?

You may change your mind at any time. If you do, tell

someone who is at least 18 years old that you have changed your

mind, and/or destroy your document and any copies. If you wish,

fill out a new form and make sure everyone you gave the old

form to has a copy of the new one, including, but not limited

to, your agents and your physicians.

WHAT IF I DO NOT WANT TO USE THIS FORM?

In the event you do not want to use the Illinois statutory

form provided here, any document you complete must be executed

by you, designate an agent who is over 18 years of age and not

prohibited from serving as your agent, and state the agent's

powers, but it need not be witnessed or conform in any other

respect to the statutory health care power.

If you have questions about the use of any form, you may

want to consult your physician, other health care provider,

and/or an attorney.

MY POWER OF ATTORNEY FOR HEALTH CARE

THIS POWER OF ATTORNEY REVOKES ALL PREVIOUS POWERS OF ATTORNEY

FOR HEALTH CARE. (You must sign this form and a witness must

also sign it before it is valid)

My name (Print your full name):..........

My address:..................................................

I WANT THE FOLLOWING PERSON TO BE MY HEALTH CARE AGENT

(an agent is your personal representative under state and

federal law):

(Agent name).................

(Agent address).............

(Agent phone number).........................................

(Please check box if applicable) .... If a guardian of my

person is to be appointed, I nominate the agent acting under

this power of attorney as guardian.

SUCCESSOR HEALTH CARE AGENT(S) (optional):

If the agent I selected is unable or does not want to make

health care decisions for me, then I request the person(s) I

name below to be my successor health care agent(s). Only one

person at a time can serve as my agent (add another page if you

want to add more successor agent names):

.............................................................

(Successor agent #1 name, address and phone number)

.............................................................

(Successor agent #2 name, address and phone number)

MY AGENT CAN MAKE HEALTH CARE DECISIONS FOR ME, INCLUDING:

(i) Deciding to accept, withdraw or decline treatment

for any physical or mental condition of mine, including

life-and-death decisions.

(ii) Agreeing to admit me to or discharge me from any

hospital, home, or other institution, including a mental

health facility.

(iii) Having complete access to my medical and mental

health records, and sharing them with others as needed,

including after I die.

(iv) Carrying out the plans I have already made, or, if

I have not done so, making decisions about my body or

remains, including organ, tissue or whole body donation,

autopsy, cremation, and burial.

The above grant of power is intended to be as broad as

possible so that my agent will have the authority to make any

decision I could make to obtain or terminate any type of health

care, including withdrawal of nutrition and hydration and other

life-sustaining measures.

I AUTHORIZE MY AGENT TO (please check any one box):

.... Make decisions for me only when I cannot make them for

myself. The physician(s) taking care of me will determine

when I lack this ability.

(If no box is checked, then the box above shall be

implemented.) OR

.... Make decisions for me only when I cannot make them for

myself. The physician(s) taking care of me will determine

when I lack this ability. Starting now, for the purpose of

assisting me with my health care plans and decisions, my

agent shall have complete access to my medical and mental

health records, the authority to share them with others as

needed, and the complete ability to communicate with my

personal physician(s) and other health care providers,

including the ability to require an opinion of my physician

as to whether I lack the ability to make decisions for

myself. OR

.... Make decisions for me starting now and continuing

after I am no longer able to make them for myself. While I

am still able to make my own decisions, I can still do so

if I want to.

The subject of life-sustaining treatment is of particular

importance. Life-sustaining treatments may include tube

feedings or fluids through a tube, breathing machines, and CPR.

In general, in making decisions concerning life-sustaining

treatment, your agent is instructed to consider the relief of

suffering, the quality as well as the possible extension of

your life, and your previously expressed wishes. Your agent

will weigh the burdens versus benefits of proposed treatments

in making decisions on your behalf.

Additional statements concerning the withholding or

removal of life-sustaining treatment are described below.

These can serve as a guide for your agent when making decisions

for you. Ask your physician or health care provider if you have

any questions about these statements.

SELECT ONLY ONE STATEMENT BELOW THAT BEST EXPRESSES YOUR WISHES

(optional):

.... The quality of my life is more important than the

length of my life. If I am unconscious and my attending

physician believes, in accordance with reasonable medical

standards, that I will not wake up or recover my ability to

think, communicate with my family and friends, and

experience my surroundings, I do not want treatments to

prolong my life or delay my death, but I do want treatment

or care to make me comfortable and to relieve me of pain.

.... Staying alive is more important to me, no matter how

sick I am, how much I am suffering, the cost of the

procedures, or how unlikely my chances for recovery are. I

want my life to be prolonged to the greatest extent

possible in accordance with reasonable medical standards.

SPECIFIC LIMITATIONS TO MY AGENT'S DECISION-MAKING AUTHORITY:

The above grant of power is intended to be as broad as

possible so that your agent will have the authority to make any

decision you could make to obtain or terminate any type of

health care. If you wish to limit the scope of your agent's

powers or prescribe special rules or limit the power to

authorize autopsy or dispose of remains, you may do so

specifically in this form.

..................................

..............................

My signature:..................

Today's date:................................................

HAVE YOUR WITNESS AGREE TO WHAT IS WRITTEN BELOW, AND THEN

COMPLETE THE SIGNATURE PORTION:

I am at least 18 years old. (check one of the options

below):

.... I saw the principal sign this document, or

.... the principal told me that the signature or mark on

the principal signature line is his or hers.

I am not the agent or successor agent(s) named in this

document. I am not related to the principal, the agent, or the

successor agent(s) by blood, marriage, or adoption. I am not

the principal's physician, advanced practice nurse, dentist,

podiatric physician, optometrist, psychologist mental health

service provider, or a relative of one of those individuals. I

am not an owner or operator (or the relative of an owner or

operator) of the health care facility where the principal is a

patient or resident.

Witness printed name:............

Witness address:..............

Witness signature:...............

Today's date:................................................

SUCCESSOR HEALTH CARE AGENT(S) (optional):

If the agent I selected is unable or does not want to make

health care decisions for me, then I request the person(s) I

name below to be my successor health care agent(s). Only one

person at a time can serve as my agent (add another page if you

want to add more successor agent names):

.............................................................

(Successor agent #1 name, address and phone number)

.............................................................

(Successor agent #2 name, address and phone number)

(c) The statutory short form power of attorney for health

care (the "statutory health care power") authorizes the agent

to make any and all health care decisions on behalf of the

principal which the principal could make if present and under

no disability, subject to any limitations on the granted powers

that appear on the face of the form, to be exercised in such

manner as the agent deems consistent with the intent and

desires of the principal. The agent will be under no duty to

exercise granted powers or to assume control of or

responsibility for the principal's health care; but when

granted powers are exercised, the agent will be required to use

due care to act for the benefit of the principal in accordance

with the terms of the statutory health care power and will be

liable for negligent exercise. The agent may act in person or

through others reasonably employed by the agent for that

purpose but may not delegate authority to make health care

decisions. The agent may sign and deliver all instruments,

negotiate and enter into all agreements and do all other acts

reasonably necessary to implement the exercise of the powers

granted to the agent. Without limiting the generality of the

foregoing, the statutory health care power shall include the

following powers, subject to any limitations appearing on the

face of the form:

(1) The agent is authorized to give consent to and

authorize or refuse, or to withhold or withdraw consent to,

any and all types of medical care, treatment or procedures

relating to the physical or mental health of the principal,

including any medication program, surgical procedures,

life-sustaining treatment or provision of food and fluids

for the principal.

(2) The agent is authorized to admit the principal to

or discharge the principal from any and all types of

hospitals, institutions, homes, residential or nursing

facilities, treatment centers and other health care

institutions providing personal care or treatment for any

type of physical or mental condition. The agent shall have

the same right to visit the principal in the hospital or

other institution as is granted to a spouse or adult child

of the principal, any rule of the institution to the

contrary notwithstanding.

(3) The agent is authorized to contract for any and all

types of health care services and facilities in the name of

and on behalf of the principal and to bind the principal to

pay for all such services and facilities, and to have and

exercise those powers over the principal's property as are

authorized under the statutory property power, to the

extent the agent deems necessary to pay health care costs;

and the agent shall not be personally liable for any

services or care contracted for on behalf of the principal.

(4) At the principal's expense and subject to

reasonable rules of the health care provider to prevent

disruption of the principal's health care, the agent shall

have the same right the principal has to examine and copy

and consent to disclosure of all the principal's medical

records that the agent deems relevant to the exercise of

the agent's powers, whether the records relate to mental

health or any other medical condition and whether they are

in the possession of or maintained by any physician,

psychiatrist, psychologist, therapist, hospital, nursing

home or other health care provider. The authority under

this paragraph (4) applies to any information governed by

the Health Insurance Portability and Accountability Act of

1996 ("HIPAA") and regulations thereunder. The agent

serves as the principal's personal representative, as that

term is defined under HIPAA and regulations thereunder.

(5) The agent is authorized: to direct that an autopsy

be made pursuant to Section 2 of "An Act in relation to

autopsy of dead bodies", approved August 13, 1965,

including all amendments; to make a disposition of any part

or all of the principal's body pursuant to the Illinois

Anatomical Gift Act, as now or hereafter amended; and to

direct the disposition of the principal's remains.

(6) At any time during which there is no executor or

administrator appointed for the principal's estate, the

agent is authorized to continue to pursue an application or

appeal for government benefits if those benefits were

applied for during the life of the principal.

(d) A physician may determine that the principal is unable

to make health care decisions for himself or herself only if

the principal lacks decisional capacity, as that term is

defined in Section 10 of the Health Care Surrogate Act.

(e) If the principal names the agent as a guardian on the

statutory short form, and if a court decides that the

appointment of a guardian will serve the principal's best

interests and welfare, the court shall appoint the agent to

serve without bond or security.

(Source: P.A. 97-148, eff. 7-14-11; 98-1113, eff. 1-1-15.)

(755 ILCS 45/4-12) (from Ch. 110 1/2, par. 804-12)

Sec. 4-12. Saving clause. This Act does not in any way

invalidate any health care agency executed or any act of any

agent done, or affect any claim, right or remedy that accrued,

prior to September 22, 1987.

This amendatory Act of the 96th General Assembly does not

in any way invalidate any health care agency executed or any

act of any agent done, or affect any claim, right, or remedy

that accrued, prior to the effective date of this amendatory

Act of the 96th General Assembly.

This amendatory Act of the 98th General Assembly does not

in any way invalidate any health care agency executed or any

act of any agent done, or affect any claim, right, or remedy

that accrued, prior to the effective date of this amendatory

Act of the 98th General Assembly.

This amendatory Act of the 99th General Assembly does not

in any way invalidate any health care agency executed or any

act of any agent done, or affect any claim, right, or remedy

that accrued, prior to the effective date of this amendatory

Act of the 99th General Assembly.

(Source: P.A. 98-1113, eff. 1-1-15.)