If you are an Illinois resident, then you may already be aware that as of January 1, 2016 there is yet another new version of the Illinois Health Care Power of Attorney (HCPOA) statutory form now in effect. Some of you may be wondering why Illinois keeps revising this form. It seems that, as of late, revisions to Illinois’ statutory HCPOA form have been frequent. By way of background, the HCPOA statutory form has evolved and been tweaked over many years. Then, in 2015, an unexpected and substantial revision to the form was rolled out, and less than a year later, legislation had already been passed (which took effect on January 1, 2016) to correct several major issues of concern with the 2015 form. In our opinion, the new changes are a vast improvement over the 2015 version. Although the 2016 changes significantly improve the 2015 version, one might argue that there still remains room for improvement. That being said, here are a few of the key, positive changes to the 2016 version of the HCPOA statutory form:
- The principal’s designation of the agent as guardian, should one later be required, has been added back into the form. For some unknown reason (perhaps simply an unintentional oversight), this provision was removed from the 2015 form.
- The designation of successor agents has been relocated to a more logical place within the form. The location of this provision in the 2015 form was quite problematic, as it appeared after the signatures of both the principal and the witness.
- Another significant change is that the 2016 version of the form now includes a third, and new, statutory option as to when the agent is permitted to act on behalf of the principal. The new, additional option reads as follows: “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.” The 2015 version included two somewhat extreme options, which for many proved to be quite confusing. Both of these options remain in the new form. The addition of the third option appears to be an attempt to bridge the gap between the extremes of the other two options, by offering a more a middle of the road option. Thus, if using the statutory form, these three options should be carefully considered; and if need be prior to completing the form, advice should be obtained to ensure that the legal impact of each option is fully understood.
- The 2016 version now includes language which allows an agent the authority to continue an application or appeal of government benefits post-death, if no probate representative is appointed. This, too, is a significant and positive addition to the form, as this provision will allow an agent to continue to pursue government benefits (such as Medicaid for long-term care) when the principal has no funds remaining and the opening of a probate estate is not, otherwise, necessary and/or practical.
Many Illinois residents are, also, now wondering whether the Illinois statutory HCPOA which they previously created is still valid; or whether they should create a new one that complies with the most recent set of changes. The good news is the recent statutory changes include a “savings clause.” As such, an existing, otherwise valid, statutory HCPOA executed prior to January 1, 2016 remains valid and in effect. However, for those who created a HCPOA using an “unaltered” version of the 2015 Illinois statutory form, we encourage you to seek advice to determine whether updating to the revised 2016 Illinois statutory form is recommended for you. For those, who created their HCPOA using a pre-2015 version of the statutory form, unless you wish to change your HCPOA for other reasons (such as to change your agents, change the effective date, etc.), your current HCPOA will more likely than not continue to meet your needs. For those who have not yet created a HCPOA then we, of course, encourage you to do so, as there is no better time than the present to create a HCPOA.
Quite simply, the bottom line is that the 2016 revisions to the Illinois statutory HCPOA are a move in the right direction. Although executing a new form is not required, Illinois residents, who used an “unaltered” 2015 version of the form, are encouraged to seek legal advice as to whether updating to the new 2016 form is recommended for them. For those who have any question at all about their current HCPOA, regardless of whether it was created using the 2015 form or a pre-2015 form, we likewise encourage those persons to seek specific legal advice for their particular circumstance.
©Copyright 2016 by Constance Burnett Renzi. All rights reserved.
The Elder Law Center, P.C. (subsidiary of Mickey, Wilson, Weiler, Renzi & Andersson, P.C., http://www.mickeywilson.com) is located in Aurora, IL, Kane County, in the Chicago Western Suburbs, phone number: 630-844-0065.
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