Estate Planning

A Power of Attorney for Property (POA-P) must be signed in the presence of a witness and a notary public. In addition, if the POA-P will be used to transfer real estate, the name of the person who prepared the POA-P must be included. None of the following may serve as a witness to the signing of a POA-P:

• the attending physician or mental health service provider of the principal, or a relative of the physician or provider;
• an owner, operator, or relative of an owner or operator of a health care facility in which the principal is a patient or resident;
• a parent, sibling, or descendant, or the spouse (or partner to a civil union) 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;
• an agent or successor

A Power of Attorney for Health Care (POA-HC) is a legal document in which you designate a person who can make health care decisions for you if you are unable to do so. Unlike a formal guardianship proceeding, where a family member asks a court to appoint a guardian for you only after you become physically or mentally incapacitated, a POA-HC allows you to decide in advance who will make health care decisions for you. With a properly executed POA-HC, your family may avoid the time, delay and expense generally associated with guardianship proceedings.

Under a Power of Attorney for Health Care (POA-HC), you can give your agent limited or broad authority to make decisions concerning your health care and personal well- being. An agent’s authority may include the ability to carry out one or more of the following on your behalf:

• Consent (or withhold consent) to any and all types of medical care, treatment or procedures, including the withdrawal or withholding of life- sustaining treatment
• Admit (or discharge) you from any and all types of hospitals, institutions, residential or nursing facilities, treatment centers and other health care institutions
• Contract for any and all type of health care services and facilities
• Examine and copy those medical records that your agent deems relevant to the exercise of his or her powers, and to consent to their disclosure

You also can give your agent authority to do one or more of the following after your death:

• Make anatomical gifts
• Request or consent to an autopsy
• Direct the disposition of your remains

In Illinois, the statutory Power of Attorney for Health Care (POA-HC) gives the agent the power to make decisions regarding the withdrawal or withholding of life-sustaining treatment, subject to any restrictions in the POA-HC. The Illinois statutory POA-HC contains an optional section where you can express your wishes about life-sustaining treatment, and when or if you would want it withheld or withdrawn. If you choose, you can grant your agent broad authority to make decisions about life-sustaining treatment for you based on whether your agent believes the expected benefits of the treatment will outweigh the expected burdens of the treatment, considering the relief of suffering, the expense involved and the quality as well as the possible extension of your life. Alternatively, you can direct that life-sustaining treatment be provided unless your attending physician determines that you are in a state of “permanent unconsciousness” or suffer from an “incurable or irreversible condition” or “terminal condition.” A third alternative allows you to direct that your life be prolonged to the greatest extent possible without regard to your condition, the chances for your recovery, or the cost.

A Power of Attorney for Health Care (POA-HC) generally is effective upon execution and remains in effect until your remains have been laid to rest. You, however, always retain the power to amend or revoke the POA-HC at any time. You also have the power to change agents. As long as you are able to make your own decisions, you alone are in charge of your health care and personal well-being.

The person whom you designate as your agent must be at least 18 and cannot be your doctor or someone who is providing you with health care services.

You must sign the Power of Attorney for Health Care (POA-HC) in the presence of at least one witness. None of the following may serve as a witness to the signing of a health care agency:

• the attending physician or mental health service provider of the principal, or a relative of the physician or provider;
• an owner, operator, or relative of an owner or operator of a health care facility in which the principal is a patient or resident;
• a parent, sibling, or descendant, or the spouse (or partner to a civil union) 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;
• an agent or successor agent for health

An Illinois Living Will is a written declaration that instructs your physician to withhold or withdraw death delaying procedures in the event that you have or develop a terminal condition. A Power of Attorney for Health Care is a written agreement where a person (the “principal”) grants powers to another person or entity (the “agent”) to make specified personal and health care decisions for the principal. A Power of Attorney for Health Care can grant to the agent the authority to make any and all decisions concerning the principal’s personal care, medical treatment, hospitalization, and health care, and regarding the requiring, withholding or withdrawing of any type of medical treatment or procedure. Alternatively, the Power of Attorney for Health Care can grant the agent more limited authority. A Power of Attorney for Health Care may also grant the agent post-death authority in regard to making anatomical gifts, authorizing an autopsy, or directing the disposition of the principal’s remains. In summary, a Living Will gives an individual’s directions to his or her family and physician regarding death delaying procedures if the individual has a terminal condition; it does not give directions for any other circumstance. A Power of Attorney for Health Care allows an individual to designate an agent who can make some or all health care decisions for that individual, including decisions related to death delaying procedures in the event of a terminal condition.

This decision is best made after consulting with your legal advisor. The Illinois Power of Attorney Act provides that if the principal has a Living Will created under the Illinois Living Will Act, the Living Will shall not be operative so long as an agent is available who is authorized by a Power of Attorney for Health Care to deal with the subject of life- sustaining or death delaying procedures on behalf of the principal. So if the principal has a Power of Attorney for Health Care that grants the agent the authority to deal with life- sustaining or death delaying procedures, then the Living Will only takes effect if there is no agent acting under the Power of Attorney for Health Care or if the issue of life- sustaining or death delaying procedures is not dealt with in the Power of Attorney for Health Care.

In Illinois, any individual who is of sound mind and who has attained the age of 18 may give all or any part of his or her body (“donor”) to a physician, hospital, medical school, dental school, chiropractic school, mortuary school, bank or storage facility for medical or dental research, education, therapy or transplantation, to a federally designated organ procurement agency or tissue bank for medical or dental research, education, therapy or transplantation, or to a specified individual. A gift of all or part of a person’s body may be made by will or by a written, signed document other than a will. A written, signed document other than a will may be part of the donor’s driver’s license or it may be a separate card or form completed by the donor. The statutory Illinois Power of Attorney for Health Care also allows a person to indicate whether or not he or she would like to be an organ donor. The donor may also make an effective gift of all or any part of his or her organs or tissues by consenting to have his or her name included in the First-Person Consent Organ/Tissue Donor Registry maintained by the Illinois Secretary of State. The web site for the Illinois Secretary of State’s organ/tissue donor registry is www.LifeGoesOn.com. If a person does not make such a gift of all or part of his or her body, then certain specified persons, including an agent under a Power of Attorney for Health Care, may consent to organ donation.