Durable Power Of Attorney 815 In Illinois
User Manual: 815
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The Self Help Legal Center
SIU School Of Law
Carbondale, IL 62901
selfhelp@siu.edu
(618) 453-3217
February, 2007
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TABLE OF CONTENTS
Table of Contents 2
Disclaimer and Symbols you should look for 3
Warning to all readers; Free sources of legal help 4
How to use this self help packet 5
Who these people are 6
Books you should read 7
What these legal terms mean 8
Summary of the law in this area 10
What happens if you have no durable power of attorney 12
When a durable power of attorney becomes effective 13
How long a durable power of attorney is effective 14
How to revoke a durable power of attorney 15
Steps to complete a durable power of attorney 16
Selection of an agent 17
Other options you may have 18
Myths 24
Tips 25
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Disclaimer — Please read
This packet of information was prepared to answer general questions and
give general advice about the law in Illinois. This packet may or may not
also include forms that you can use. When reading this packet or using
the forms, keep in mind that the advice, information, and forms were
created to assist readers with general issues, not specific situations, and
as such does not replace the advice or representation of an attorney
licensed to practice in the State of Illinois. Because of this and because
of unanticipated changes in the law, the School of Law at Southern
Illinois University and the person, institution, or agency who gave you this
packet make no claim as to whether the use of this packet will achieve
the result you desire and disclaim any responsibility for the consequences
of any form prepared or action taken in reliance upon the information in
this packet. If you are concerned or do not understand whether this
packet will be of assistance to you or will apply to your specific situation,
you should talk to an attorney who is licensed to practice in the State of
Illinois. If you have any questions about this disclaimer,
call the Self Help Legal Center.
Look for these symbols to tell you when to:
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advice to continue.
CHECK IT OUT!
This issue is
discussed in an-
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so pay attention.
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4
Warning to all readers
Before you proceed with using this
packet, you should ask yourself the
following questions:
1. Have I tried to consult a private
attorney?
No self-help publication, packet, or form
can replace the advice and experience of a
licensed attorney. An attorney may not
cost as much as you think, especially if you
just need to ask questions. Before you
proceed on your own, call several local at-
torneys, compare prices, and find out
whether you can pay an attorney or not.
2. If I cannot afford an attorney,
have I tried to find a free source of
legal assistance?
There are several agencies which provide
legal assistance for free to certain groups
of individuals. Some of these agencies are
listed to the right. While they may not be
able to help you with a particular problem,
it does not hurt to call them to find out
before you proceed on your own.
3. Is this something that I can do
on my own?
If you have trouble following directions,
or have difficulty reading, writing, or
speaking in public, you may not be able to
follow the directions and advice in this
packet. If this is the case, find a friend
or someone who can help you before you
proceed on your own.
Land Of Lincoln Legal Assistance
Serves the 65 southernmost counties
in Illinois
Toll Free: 877-342-7891
For additional information, you may
visit their website at
Http://www.lollaf.org
Prairie State Legal Services
Serves most of northern and north
central Illinois outside of Cook
County
815-965-2134
800-331-0617
Coordinated Advice and Referral
Program for Legal Services
serving Cook County
312-738-9200
Will County Legal Assistance
Serving Will County
815-727-5123
Free sources of legal help
5
It is very important that you read each section of this packet
completely before you take any action in regard to a legal problem
including using any forms that supplement this packet.
Because this packet discusses terms and actions you are likely not familiar with,
you will need to refer back to the following sections from time to time when
reading this packet:
What These Legal Terms Mean
This section defines commonly used legal terms in words that you can understand. To use the
rest of this packet and any supplemental forms, you need to understand exactly what these
terms mean.
Other Options You May Have.
This section provides basic information on other advance directives and options available, listing
both their pros and their cons.
Summary of the Law in This Area
This section explains the effect of a durable power of attorney and what happens if you become
incapacitated without having made one.
Steps to Complete a Durable Power of Attorney
This section goes through the steps necessary to complete a durable power of attorney.
Selection of an Agent
This section discusses techniques to use when selecting an agent to carry out your wishes as
evidenced by the durable power of attorney.
How to use this self help packet
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Who these people are
Judge:
The judge is the person who presides over the courtroom. In most cases,
including divorce cases, the judge makes all of the final decisions and ap-
proves all agreements. When a judge makes a decision or a finding, it has
the force of law. The judge also sets and enforces court rules (like dress
codes) and in some courthouses, the judge decides when cases are sched-
uled.
Agent:
An agent is someone you choose to act for you through your Power of At-
torney or Durable Power of Attorney. An agent can have broad powers or
very limited powers. An agent may be used to help with finances or other
assets or to assist in fulfilling your medical treatment wishes.
Attorney:
An attorney is someone who can help you with your legal problem by pro-
viding you with advice about the law, the legal system, and the merits of
your case. An attorney can act as your advocate and can represent you in
court and in negotiation settlements.
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Books on Durable Powers of Attorney
The Power of Attorney Handbook
by Edward A. Haman
The Financial Power of Attorney Handbook
by Shae Irving
60 Minute Estate Planner
by Sandy F. Kraemer
Planning for Uncertainty: Living Wills and Other Advance Directives for Health Care
by David John Doukas, M.D. and William Reichel, M.D.
Disclaimer: Please Read !!
The following is a list of publications which discuss creating
durable power of attorneys for health care and or property.
Some of these publications are specific to Illinois and others
are more general in nature. Because of this and because of
unanticipated changes in the law, the School of Law at
Southern Illinois University and the person, institution, or agency who gave you this
packet make no claim as to the accuracy of the content of these publications including
whether they will achieve the result you desire. The School of Law at Southern Illi-
nois University and the person, institution, or agency who gave you this packet dis-
claim any responsibility for the consequences of any action taken in reliance upon the
information in these publications. If you are concerned or do not understand whether
a particular book will be of assistance to you or will apply to your specific situation,
you should talk to the publication’s publisher or an attorney who is licensed to prac-
tice in the State of Illinois. If you have any questions about this disclaimer, call the
Self Help Legal Center.
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Agent
The person who is given the authority to act for the
principal by the Power of Attorney (also called an attorney-
in-fact in some states).
Attorney-in-fact
The person who is given the authority to act for the
principal by the Power of Attorney (also called an agent in
some states).
Principal
The person who signs the power of attorney and thereby gives someone the authority
to act on his or her behalf.
Power of Attorney
A document which gives one person (the agent) authority to act on behalf of another
person (the principal). The agent’s authority is terminated if the principal becomes
incapacitated.
Durable Power of Attorney (DPOA)
A power of attorney that remains valid and in effect even after the principal becomes
incapacitated.
Durable Power of Attorney for Health Care
A power of attorney that applies to any kind of medical decision that might need to
be made if the person is unable to communicate or otherwise incapacitated, whether
or not the person is terminally ill. It permits the person to designate a decision-
maker to specify the kinds of treatment you do want as well as those you do not.
Durable Power of Attorney for Property
A power of attorney that gives the agent the authority to transact business for the
principal.
Incapacitated
A person becomes unable to handle his or her own financial affairs or healthcare
decisions. (also called “disabled” or “incompetent” in some states). A physician
generally makes the determination of whether a person is incapacitated or not. The
determination of incapacity is usually made by at least one physician.
What these legal terms mean
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Advance Directive
Another name used for a DPOA for Health Care or any oral
or written statement that tells a health care professional
what forms of medical care a person would accept or would
refuse in a specific medical circumstance or, alternatively,
who should make health care decisions if the person is unable
to express his or her own wishes.
Springing Power of Attorney
Power of attorney that does not become effective until a certain event occurs, such
as the incapacity of the principal. It is used when the principal does not want the
DPOA to become effective immediately, but to take effect only when he or she is
determined to be incapacitated.
Patient Self-Determination Act
Act requiring hospitals receiving federal funds to advise patients of their right to
sign advance directives. The medical facilities are also required to inform adult
patients of their right to accept or refuse medical or surgical treatment.
Health Care Surrogate Act
Act that appoints certain family members, as determined by the statute, to act as a
surrogate for a person who has become incapacitated and is unable to make health
care decisions for his or herself. The person must not have a valid DPOA for Health
Care or a valid Living Will in effect for this Act to apply. The surrogate is then
allowed to make health care decisions for the incapacitated person.
What these legal terms mean – cont’d
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In response to advances in medical technology and increased
life spans, most states, including Illinois, have advance
directives. Advance directives allow individuals to select the
person of their choice make decisions on their behalf if they
become disabled and incapacitated. This person is called an
“agent.” The Illinois legislature enacted the Illinois Power of
Attorney Act, 755 ILCS 45/1-1, to create two documents that
allow individuals to appoint an agent to make decisions.
What is a Durable Power of Attorney?
A Durable Power of Attorney (DPOA) is a written instrument that allows a
person, called the principal, to give to another person, called the agent, the power to
make any decision the principal is, or will become, unable to make. Illinois law provides
for two types of statutory durable powers of attorney. The first is a Power of
Attorney for Healthcare. This advance healthcare directive allows you to designate a
person to make medical decisions on your behalf when you are unable to do so. This
power of attorney is flexible and applies in various situations. For example, a DPOA
can be used to express your wishes about whether you want life-sustaining
treatments, as well as under what circumstances you may want them discontinued.
The second advance directive created is a Power of Attorney for Property.
This document is also flexible, allowing an individual, the principal, to permit another
person to act as their agent when making decisions about their personal or real
property. With an effective power of attorney, the principal can designate specific
powers suited to their individual needs, including the power to make gifts, authorize
real estate or stock transactions or to handle banking matters.
Summary of the law in this area
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What are the Requirements for a Durable Power of
Attorney?
In Illinois, anyone who is at least 18 years of age, with
legal capacity, and a resident of Illinois can create a DPOA.
The person appointed as agent must also be 18 or over. The
health care power of attorney must be in writing and signed
by the principal and a witness. A property power of attorney must be in writing,
signed by the principal and at least one additional witness, and also must be
notarized.
Most people name a family member or close friend to act as their agent since
these are the people who know them best and who will know how they handle medical
or business affairs. The agent must use care when acting on a principal’s behalf or he
or she might be found personally liable for the negligent exercise of their powers.
This means the agent must act the same as a reasonable person would in the same or
similar circumstances. Also, the agent’s actions must not exceed the powers provided
for in the durable power of attorney.
Summary of the law in this area – cont’d
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Without a DPOA, if you become incompetent, it might be necessary for
someone to go to court to have a person appointed to take care of you and/or your
finances. This involves the appointment of a legal guardian to take care of you or your
assets or both. This court process is normally time consuming, expensive and often
traumatic to the family as well as to you.
Under the Health Care Surrogate Act, if you do not have a DPOA for Health
Care, the statute provides for certain family members to act as your agent to make
health care decisions for you. The family members are chosen in the following order:
1. Patient’s guardian of the person
2. Patient’s spouse
3. Patient’s adult child
4. Patient’s parent
5. Patient’s adult brother or sister
6. Patient’s adult grandchild
7. Patient’s close friend
8. Patient’s guardian of the estate
However, if an Illinois resident is in a facility in another state where they have no
such act, the Health Care Surrogate Act is not applicable.
For further information, refer to page 18.
What Happens if I Do Not Have a Durable Power
of Attorney When I Become Incapacitated?
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When Does a DPOA Become Effective?
A DPOA can become effective at different times, depending on what you
specify. If you state that your DPOA should take effect at the time you sign it,
your agent may immediately make decisions for you. On the other hand, you may
wish that your DPOA become effective at some future time or event. This is
called a springing power of at-
torney. For example, you may
wish to have a physician make a
determination of your disability
before your agent can make de-
cisions for you. A person who
makes a power of attorney
effective immediately still retains the right to make their own decisions for as
long as they maintain their legal capacity.
One drawback to a springing power of attorney is that the process of get-
ting the doctor(s)’ statements certifying you are incapacitated may be time-
consuming.
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A durable power of attorney remains in effect even
after the principal becomes incapacitated. A DPOA may
end, however, if one of the following happens:
(1) you state a specific date or event of
termination in your DPOA;
(2) you revoke your DPOA in writing or orally, regardless of your physical or
mental condition at the time of the revocation;
(3) your agent is unable or refuses to serve and no alternate agent was
named. (The supplement contains a form for an agent who wishes to
resign.);
(4) your spouse was your agent and you are divorced and you did not name an
alternate agent; or
(5) you die.
How Long is a Durable Power of Attorney
Effective?
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How Do I Revoke My DPOA?
You can revoke your DPOA at any time, regardless of your mental or physi-
cal condition, by any of the following methods:
(1) By obliterating, burning, tearing or otherwise destroying or defacing
in a manner indicating intention to revoke;
(2) You, or a person acting at your direction can prepare, sign, and date a
written revocation.
(3) By an oral expression or some other kind of expression of the intent
to revoke your DPOA. This must be done in the presence of a witness 18
years of age or older. Then, he/she must sign and dates a writing
confirming that your expression of intent was made.
** It is important that your agent is informed that they no longer have the
authority to act for you. Also inform anyone who dealt with or might deal
with your agent that your agent no longer has the authority to act for you.
If you do not do so and someone enters into a transaction with your former
agent in good faith, you might be held legally liable.
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Seven Steps to complete a DPOA
Steps to Complete the DPOA
Step 1. A DPOA for Health Care and a DPOA for Property
are included in the supplement to this packet. Choose which
form you want to use – health care or property. Most people
need to complete both forms to ensure that all decisions can be
made for them if they become incapacitated.
Suggestion: Meet with your physician to discuss the use or re-
fusal of life-sustaining medical treatment and the effects of
signing the durable power of attorney for health care and any other questions you
might have.
Step 2. Speak with the person you want as your agent. Be sure that the person
understands the significance of the role before he or she agrees to serve. Discuss
your health care wishes including the circumstances under which you would or would
not consent to the use of feeding tubes and other life-sustaining treatment. Discuss
your assets and finances with the agent so he or she understands how you conduct
your business and financial affairs.
Step 3. Name an alternative agent or agents in case the original agent becomes
unavailable or unwilling to serve.
Step 4. Review the form and make modifications to reflect your wishes. Fill out
the form and sign it in the presence of a witness, who also signs the form. Do not
have your agent or alternative agent sign as the witness. For the DPOA for Property,
sign the document in the presence of a notary public.
Step 5. Make copies of the DPOA & give one to your doctor (if it is for health
care), one to your agent(s) and one to any other person you want to have this informa-
tion. Keep the original in a safe and accessible place.
Step 6. Keep your DPOA current. If anything changes with regard to your
wishes or choice of agent, make sure to modify your DPOA to reflect the change(s)
and give updated copies to anyone who has the outdated form.
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Selection of an agent
Selecting an Agent
Select an adult who you think would best represent your
values and preferences regarding medical treatment and who is
well acquainted with your values and preferences. This person
should be able to weigh the special circumstances of the situa-
tion and the choices available and make a decision.
Most people select a close family member or friend. Be
sure that the person you choose is trustworthy, responsible, will
carry out your wishes and is qualified to handle your assets for
you.
If you are married, you should consider naming your spouse. If your spouse is
ill, elderly or simply not willing to act as your agent, you should choose your agent with
your spouse’s help to avoid future conflicts or problems with decision-making and/or
property and asset management.
Some characteristics to look for when choosing an agent:
1. Someone you trust completely;
2. Someone who can weigh the specific circumstances of the situation and
the choices available and make a rational decision;
3. Someone who will likely be present when the decisions need to be made;
4. Someone who will not be easily swayed or bullied by doctors or family
members who disagree with your wishes;
5. Someone who is capable of understanding your medical condition and any
proposed life-prolonging measures; and
6. Someone who understands your financial affairs and is capable of
handling your assets.
Different Agents for Different DPOAs
You might want to consider naming a different agent for your DPOA for Health
Care than the one you named for your DPOA for Property . Since the responsibilities
of the agent differs with the type of DPOA, it might be appropriate to name the per-
son with the best business ability for the Property DPOA and the person who knows
you the most and who you trust the most for the Health Care DPOA.
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6 other options you may have
Option 1: Do Nothing.
If you do not have a DPOA, your health care will be
decided by the HCSA.
Health Care Surrogate Act
The HCSA becomes effective if a person becomes
incapacitated and does not have a valid DPOA for Health
Care or Living Will. Under the Act, a family member or friend, as determined by the
statute, is chosen to act as your decision maker for future health care treatment
decisions. The family member is chosen in the following order:
1. patient’s guardian of the person
2. patient’s spouse
3. patient’s adult child
4. patient’s parent
5. patient’s adult brother or sister
6. patient’s adult grandchild
7. patient’s close friend
8. patient’s guardian of the estate
If there is more than one person at a certain level, all of the persons in that
level can act as the surrogate. For example, if 2 or more persons in the same level
disagree as to a health care matter, then the decision of the majority of persons at
that level or that of the custodial parent controls. If there is more than one person
at the same level, some may decline to exercise their authority and defer to another’s
action as surrogate.
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6 other options you may have – cont’d
The HCSA provides coverage for persons without a Living Will or DPOA for
Health Care. It doesn’t guarantee that the person you would have chosen as your
health care agent becomes your health care surrogate. Thus, it is very important to
have a DPOA for Health Care to guarantee that the person you want is making your
health care decisions.
Option 2: Get a Guardianship
A guardian is a person appointed by the court to take care of another person
who has been deemed unable to make decisions for himself or herself. A guardian
may be given authority to make all kinds of decisions or his/her authority may be
limited by the court to a specific area. Before a person can have a guardian, the
court must determine that the person has become incompetent to handle some or all
of his or her affairs.
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Disadvantages of a Guardianship:
Several factors weigh against guardianships.
Guardianships can be complicated, expensive (lawyers
are usually necessary) and embarrassing (because family
members must ask the court to rule that you cannot
take care of your own affairs and the proceeding is a matter of public record).
In addition, there is no guarantee that the judge will appoint the person you
might have chosen for the job. Guardians are entitled to payment for their ser-
vices so an unscrupulous person could pay him or herself handsomely for less
than dedicated service and a guardianship may be ended only by the court. Fi-
nally, guardians usually must post a bond and get court approval for certain
transactions. In addition, they usually have to prepare detailed financial reports
and periodically file them with the court.
Advantages of a Guardianship:
The work of a guardian is subject to court scrutiny and supervision. In
some situations, the involvement of the court might be beneficial.
6 other options you may have – cont’d
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6 other options you may have – cont’d
Option 3: Putting Property in Joint Tenancy
Joint tenancy is a way for more than one person to
own property together. Generally, when one owner dies, the
other owner automatically receives the deceased person’s
share of the property. This is why a lot of people put
property in joint tenancy because once they die, the other party can own the property
outright without having to go through a will or probate. There are, however,
disadvantages to this. If one owner simply becomes incapacitated, however, the other
owner has very limited authority over his or her share of the joint tenancy property
(for example, they will possess no legal authority to sell or refinance the
incapacitated owner‘s share). Thus, the other owner will need someone with legal
authority to act on the behalf of the incapacitated owner.
In addition, as long as any joint tenant is alive, he or she can terminate the
joint tenancy simply by selling his or her share, whether or not the other owner’s
consent to it. But a person cannot leave (by will or otherwise) their interest in a joint
tenancy property to anyone other than another joint tenant. Furthermore, creditors
may go after any joint tenant’s interest (but not the others‘ interest) which might
require a court order demanding the property be sold to reach the debtor’s share.
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6 other options you may have – cont’d
Option 4: Living (or Inter Vivos) Trust
A trust is a legal document that controls the use of
property and assets placed in the trust. It is advantageous
in that it is not made public at your death (as wills are) and
you can revise, amend or revoke it at any time prior to your
death as long as you are mentally competent. In addition, it is extremely flexible
because you can use it to transfer all of your property or only some of it. The trustee
(the person you choose to manage your trust) can also, in most cases, take over
management of the trust property if you become incapacitated. The disadvantage,
however, is that it only governs property specifically placed within the trust.
Therefore, the trustee would have no control over property the trust does not own.
Setting up trusts is complicated and requires consultation with an attorney who is
familiar with the process. In addition, setting up and managing trusts can be
expensive.
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6 other options you may have - cont’d
Option 5: Living Will
A living will is a declaration or statement allowing a
person to direct that life-sustaining medical treatment be
withdrawn or withheld in the future if the person is
terminally ill and no longer able to make decisions. The
document speaks directly to medical personnel, thus, it allows the person to articulate
his or her preferences directly instead of using an agent. Living wills are now
recognized in nearly all of the states and nearly all of them also have a statutory form
to create one.
The living will is designed to allow a person to refuse life-sustaining treatment
if he becomes terminally ill. It does not replace the need for a durable power of
attorney for health care because it would be virtually impossible to anticipate all
possible medical situations that could arise. Presently, the living will only pertains to
situations involving a terminal illness or, in some states, a persistent vegetative
condition. In addition, some states will not allow a living will to be used to terminate
life-sustaining nutrition and hydration.
One way to completely protect yourself would be to create both a Living Will
and a Durable Power of Attorney for Health Care. However, the living will would only
be operative if your agent and any successor agents are unavailable. If only one
method is utilized, however, it is best to do a Durable Power of Attorney for Health
Care.
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Myths
I don’t have to think about this until I get older or
become ill.
You never know when you suddenly will be unable to speak
for yourself. Illness or accidents can happen to anyone at
any time. If you do not have the mental capacity to make
the necessary decisions when the time comes, you abrogate
the decision to the doctors, courts and others who may take
steps that are the opposite of what you would want.
My spouse can take care of everything if I become incapacitated.
Generally, spouses do not have the legal authority to sign the other spouse’s name or
make medical or other decisions for a disabled spouse. Spouses can only deal with
property and assets held jointly with you.
It’s no big deal if I do not make a DPOA for Health Care.
Not making a DPOA may jeopardize your ability to be treated in the manner of your
choosing if you should some day be unable to speak for yourself. As a result, you may
be subjected to medical treatments that you did not want or health care decisions
being made by someone you would not have selected. It also may put your loved ones
in the difficult position of selecting treatment for you based on their guesses about
what you would choose.
I do not need a DPOA for Health Care if I already have a Living Trust.
The trustee of your living trust cannot make health care decisions for you. The
trustee only manages assets in the trust according to the trust terms. You still need
a DPOA for Health Care.
I do not need a DPOA for Property if I already have a Living Trust.
The trustee of your living trust can only deal with assets in the trust. If you receive
income or have other assets not in the trust, you will need a DPOA for Property to
ensure that these are properly handled.
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Tips
Get help if you need it
If you have trouble following directions, doing things on
time, filling out forms, or keeping track of paperwork, then
doing your own durable power of attorney may be much
more stressful than it needs to be. If, however, you have a
friend you can help you do these things, the job will be a lot
easier. Keep in mind, however, that a friend cannot take the
place of the advice and experience of an attorney licensed to practice in the State of
Illinois. Consequently, if you need legal advice or if doing your own durable power of
attorney proves to be too difficult a task for you, talk to an attorney.
The time to designate a Power of Attorney
The best time for you to create a Power of Attorney is right now, long before you
anticipate anything happening to you. This will ensure that if you are ever in a
situation where you need an agent, you will have one.
Other things to Consider
Before executing your Durable Power of Attorney for Health
Care, you should talk to the person who you want to be your agent and review your
wishes for the types of medical treatment you choose to receive.
Be careful not to provide your agent with powers that are too broad (may be subject
to abuse of misinterpretation) or too confined (could make it impossible for the agent
to act.
It is advisable for you to specify one or more successor agents to act in your behalf
in case the primary agent is unavailable, unable or unwilling to act in your behalf
should it become necessary. As with your primary agent, the primary consideration
should be that the individuals appointed are people in whom you have a great deal of
trust and can rely upon to act according to your interests and value. Your Power of
Attorney document should also state the duties, limitations, immunities and other
terms applicable to your agent.
©Board of Trustees, Southern Illinois University
