Power of Attorney and Health Care – General – Illinois
Related Illinois Legal Forms
755 ILCS 45/2-1: Purpose.
The General Assembly recognizes that each individual has the right to appoint an agent to deal with property or make personal and health care decisions for the individual but that this right cannot be fully effective unless the principal may empower the agent to act throughout the principal’s lifetime, including during periods of disability, and be sure that third parties will honor the agent’s authority at all times. The General Assembly finds that in the light of modern financial needs and advances in medical science, the statutory recognition of this right of delegation in Illinois needs to be restated to, among other things, expand its application and the permissible scope of the agent’s authority, clarify the power of the individual to authorize an agent to make financial and care decisions for the individual and better protect health care personnel and other third parties who rely in good faith on the agent so that reliance will be assured. Nothing in this Act shall be deemed to authorize or encourage euthanasia, suicide or any action or course of action that violates the criminal law of this State or the United States. Similarly, nothing in this Act shall be deemed to authorize or encourage any violation of a civil right expressed in the Constitution, statutes, case law and administrative rulings of this State (including, without limitation, the right of conscience respected and protected by the Health Care Right of Conscience Act, as now or hereafter amended) or the United States or any action or course of action that violates the public policy expressed in the Constitution, statutes, case law and administrative rulings of this State or the United States.
755 ILCS 45/2-2: Short Title.
This Article shall be known and may be cited as the “Durable Power of Attorney Law”.
755 ILCS 45/2-3: Definitions.
As used in this Act:
(a) “Agency” means the written power of attorney or other instrument of agency governing the relationship between the principal and agent or the relationship, itself, as appropriate to the context, and includes agencies dealing with personal or health care as well as property. An agency is subject to this Act to the extent it may be controlled by the principal, excluding agencies and powers for the benefit of the agent.
(b) “Agent” means the attorney-in-fact or other person designated to act for the principal in the agency.
(c) “Disabled person” has the same meaning as in the “Probate Act of 1975”, as now or hereafter amended. To be under a “disability” or “disabled” means to be a disabled person.
(d) “Person” means an individual, corporation, trust, partnership or other entity, as appropriate to the agency.
(e) “Principal” means an individual (including, without limitation, an individual acting as trustee, representative or other fiduciary) who signs a power of attorney or other instrument of agency granting powers to an agent.
755 ILCS 45/2-4: Applicability.
(a) The principal may specify in the agency the event or time when the agency will begin and terminate, the mode of revocation or amendment and the rights, powers, duties, limitations, immunities and other terms applicable to the agent and to all persons dealing with the agent, and the provisions of the agency will control notwithstanding this Act, except that every health care agency must comply with Section 4-5 of this Act.
(b) From and after the effective date of this Act:
(1) this Act governs every agency, whenever and wherever executed, and all acts of the agent to the extent the provisions of this Act are not inconsistent with the agency; and
(2) this Act applies to all agencies exercised in Illinois and to all other agencies if the principal is a resident of Illinois at the time the agency is signed or at the time of exercise or if the agency indicates that Illinois law is to apply. Providing forms of statutory property and health care powers in Articles III and IV does not limit the applicability of this Act, it being intended that every agency, including, without limitation, the statutory property and health care power agencies, shall have the benefit of and be governed by Article II, by Sections 4-1 through 4-9 and Section 4-11 of Article IV, and by all other general provisions of this Act, except to the extent the terms of the agency are inconsistent with this Act.
755 ILCS 45/2-5: Duration of agency – amendment and revocation.
Unless the agency states an earlier termination date, the agency continues until the death of the principal, notwithstanding any lapse of time, the principal’s disability or incapacity or appointment of a guardian for the principal after the agency is signed. Every agency may be amended or revoked by the principal at any time and in any manner communicated to the agent or to any other person related to the subject matter of the agency, except that revocation and amendment of health care agencies are governed by Section 4-6 of this Act except to the extent the terms of the agencies are inconsistent with that Section.
755 ILCS 45/2-6: Effect of disability divorce.
(a) All acts of the agent within the scope of the agency during any period of disability, incapacity or incompetency of the principal have the same effect and inure to the benefit of and bind the principal and his or her successors in interest as if the principal were competent and not disabled.
(b) If a court enters a judgment of dissolution of marriage or legal separation between the principal and his or her spouse after the agency is signed, the spouse shall be deemed to have died at the time of the judgment for all purposes of the agency.
755 ILCS 45/2-7: Duty – standard of care- record keeping – exoneration.
The agent shall be under no duty to exercise the powers granted by the agency or to assume control of or responsibility for any of the principal’s property, care or affairs, regardless of the principal’s physical or mental condition. Whenever a power is exercised, the agent shall use due care to act for the benefit of the principal in accordance with the terms of the agency and shall be liable for negligent exercise. An agent who acts with due care for the benefit of the principal shall not be liable or limited merely because the agent also benefits from the act, has individual or conflicting interests in relation to the property, care or affairs of the principal or acts in a different manner with respect to the agency and the agent’s individual interests. The agent shall keep a record of all receipts, disbursements, and significant actions taken under the agency. The agent shall not be affected by any amendment or termination of the agency until the agent has actual knowledge thereof. The agent shall not be liable for any loss due to error of judgment nor for the act or default of any other person.
755 ILCS 45/2-7.5: Incapacitated principal.
(a) This Section shall apply only to an agent acting for a principal who is incapacitated. A principal shall be considered incapacitated if that individual is under a legal disability as defined in Section 11a-2 of the Probate Act of 1975. A principal shall also be considered incapacitated if:
(i) a physician licensed to practice medicine in all its branches has examined the principal and has determined that the principal lacks decision making capacity; and
(ii) that physician has made a written record of this determination and has signed the written record within 90 days after the examination; and
(iii) the written record has been delivered to the agent. The agent may rely conclusively on that written record.
(b) An agent shall provide a record of all receipts, disbursements, and significant actions taken under the authority of the agency when requested to do so:
(i) by a representative of a provider agency, as defined in Section 2 of the Elder Abuse and Neglect Act, acting in the course of an assessment of a complaint of elder abuse or neglect under that Act; or
(ii) by a representative of the Office of the State Long Term Care Ombudsman acting in the course of an investigation of a complaint of financial exploitation of a nursing home resident under Section 4.04 of the Illinois Act on the Aging.
755 ILCS 45/2-8: Reliance on document purporting to establish an agency.
Any person who acts in good faith reliance on a copy of a document purporting to establish an agency will be fully protected and released to the same extent as though the reliant had dealt directly with the named principal as a fully competent person. The named agent shall furnish an affidavit to the reliant on demand stating that the instrument relied on is a true copy of the agency and that, to the best of the named agent’s knowledge, the named principal is alive and the relevant powers of the named agent have not been altered or terminated; but good faith reliance on a document purporting to establish an agency will protect the reliant without the affidavit. Any person dealing with an agent named in a copy of a document purporting to establish an agency may presume, in the absence of actual knowledge to the contrary, that the document purporting to establish the agency was validly executed, that the agency was validly established, that the named principal was competent at the time of execution, and that, at the time of reliance, the named principal is alive, the agency was validly established and has not terminated or been amended, the relevant powers of the named agent were properly and validly granted and have not terminated or been amended, and the acts of the named agent conform to the standards of this Act. No person relying on a copy of a document purporting to establish an agency shall be required to see to the application of any property delivered to or controlled by the named agent or to question the authority of the named agent. Each person to whom a direction by the named agent in accordance with the terms of the copy of the document purporting to establish an agency is communicated shall comply with that direction, and any person who fails to comply arbitrarily or without reasonable cause shall be subject to civil liability for any damages resulting from noncompliance. A health care provider who complies with Section 4-7 shall not be deemed to have acted arbitrarily or without reasonable cause.
755 ILCS 45/2-9: Preservation of estate plan and trusts.
In exercising powers granted under the agency, including powers of amendment or revocation and powers to expend or withdraw property passing by trust, contract or beneficiary designation at the principal’s death (such as, without limitation, specifically bequeathed property, joint accounts, life insurance, trusts and retirement plans), the agent shall take the principal’s estate plan into account insofar as it is known to the agent and shall attempt to preserve the plan, but the agent shall not be liable to any plan beneficiary under this Section unless the agent acts in bad faith. An agent may not revoke or amend a trust revocable or amenable by the principal or require the trustee of any trust for the benefit of the principal to pay income or principal to the agent without specific authority and specific reference to the trust in the agency. The agent shall have access to and the right to copy (but not to hold) the principal’s will, trusts and other personal papers and records to the extent the agent deems relevant for purposes of this Section.
755 ILCS 45/2-10: Agency-court relationship.
Upon petition by any interested person (including the agent), with such notice to interested persons as the court directs and a finding by the court that the principal lacks the capacity to control or revoke the agency:
(a) if the court finds that the agent is not acting for the benefit of the principal in accordance with the terms of the agency or that the agent’s action or inaction has caused or threatens substantial harm to the principal’s person or property in a manner not authorized or intended by the principal, the court may order a guardian of the principal’s person or estate to exercise any powers of the principal under the agency, including the power to revoke the agency, or may enter such other orders without appointment of a guardian as the court deems necessary to provide for the best interests of the principal; or
(b) if the court finds that the agency requires interpretation, the court may construe the agency and instruct the agent, but the court may not amend the agency. Absent court order directing a guardian to exercise powers of the principal under the agency, a guardian will have no power, duty or liability with respect to any property subject to the agency or any personal or health care matters covered by the agency. Proceedings under this Section shall be commenced in the county where the guardian was appointed or, if no Illinois guardian is acting, then in the county where the agent resides or, if the agent does not reside in Illinois, then in any county.
755 ILCS 45/2-11: Saving clause.
This Act does not in any way invalidate any agency executed or any act of any agent done, or affect any claim, right or remedy that accrued, prior to September 22, 1987.
Note: All Information and Previews are subject to the Disclaimer located on the main forms page, and also linked at the bottom of all search results.