Power of Attorney and Health Care – General – Illinois
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755 ILCS 45/4-1: Purpose.
The General Assembly recognizes the right of the individual to control all aspects of his or her personal care and medical treatment, including the right to decline medical treatment or to direct that it be withdrawn, even if death ensues. The right of the individual to decide about personal care overrides the obligation of the physician and other health care providers to render care or to preserve life and health. However, if the individual becomes disabled, her or his right to control treatment may be denied unless the individual, as principal, can delegate the decision making power to a trusted agent and be sure that the agent’s power to make personal and health care decisions for the principal will be effective to the same extent as though made by the principal.
The Illinois statutory recognition of the right of delegation for health care purposes needs to be restated to make it clear that its scope is intended to be as broad as the comparable right of delegation for property and financial matters. However, the General Assembly recognizes that powers concerning life and death and the other issues involved in health care agencies are more sensitive than property matters and that particular rules and forms are necessary for health care agencies to insure their validity and efficacy and to protect health care providers so that they will honor the authority of the agent at all times. For purposes of emphasis and their particular application to health care, the General Assembly restates the purposes and public policy announced in Article II, Section 2-1 of this Act as if those purposes and public policies were set forth verbatim in this Section.
In furtherance of these purposes, the General Assembly adopts this Article, setting forth general principles governing health care agencies and a statutory short form power of attorney for health care, intending that when a power in substantially the form set forth in this Article is used, health care providers and other third parties who rely in good faith on the acts and decisions of the agent within the scope of the power may do so without fear of civil or criminal liability to the principal, the State or any other person. However, the form of health care agency in this Article is not intended to be exclusive and other forms of powers of attorney chosen by the principal that comply with Section 4-5 of this Article may offer powers and protection similar to the statutory short form power of attorney for health care.
755 ILCS 45/4-2: Short Title.
This Article shall be known and may be cited as the “Powers of Attorney for Health Care Law”.
755 ILCS 45/4-3: General principles.
The health care powers that may be delegated to an agent include, without limitation, all powers an individual may have to be informed about and to consent to or refuse or withdraw any type of health care for the individual and all powers a parent may have to control or consent to health care for a minor child. A health care agency may extend beyond the principal’s death if necessary to permit anatomical gift, autopsy or disposition of remains. Nothing in this Article shall impair or supersede any legal right or legal responsibility which any person may have to effect the withholding or withdrawal of life-sustaining or death-delaying procedures in any lawful manner, and the provisions of this Article are cumulative in such respect.
755 ILCS 45/4-4: Definitions.
As used in this Article:
(a) “Attending physician” means the physician who has primary responsibility at the time of reference for the treatment and care of the patient.
(b) “Health care” means any care, treatment, service or procedure to maintain, diagnose, treat or provide for the patient’s physical or mental health or personal care.
(c) “Health care agency” means an agency governing any type of health care, anatomical gift, autopsy or disposition of remains for and on behalf of a patient and refers to the power of attorney or other written instrument defining the agency or the agency, itself, as appropriate to the context.
(d) “Health care provider” or “provider” means the attending physician and any other person administering health care to the patient at the time of reference who is licensed, certified, or otherwise authorized or permitted by law to administer health care in the ordinary course of business or the practice of a profession, including any person employed by or acting for any such authorized person.
(e) “Patient” means the principal or, if the agency governs health care for a minor child of the principal, then the child.
755 ILCS 45/4-5: Limitations on health care agencies.
Neither the attending physician nor any other health care provider may act as agent under a health care agency; however, a person who is not administering health care to the patient may act as health care agent for the patient even though the person is a physician or otherwise licensed, certified, authorized, or permitted by law to administer health care in the ordinary course of business or the practice of a profession.
755 ILCS 45/4-6: Revocation and amendment of health care agencies.
(a) Every health care agency may be revoked by the principal at any time, without regard to the principal’s mental or physical condition, by any of the following methods:
1. By being obliterated, burnt, torn or otherwise destroyed or defaced in a manner indicating intention to revoke;
2. By a written revocation of the agency signed and dated by the principal or person acting at the direction of the principal; or
3. By an oral or any other expression of the intent to revoke the agency in the presence of a witness 18 years of age or older who signs and dates a writing confirming that such expression of intent was made.
(b) Every health care agency may be amended at any time by a written amendment signed and dated by the principal or person acting at the direction of the principal.
(c) Any person, other than the agent, to whom a revocation or amendment is communicated or delivered shall make all reasonable efforts to inform the agent of that fact as promptly as possible.
755 ILCS 45/4-7: Duties of health care providers and others in relation to health care agencies.
Each health care provider and each other person with whom an agent deals under a health care agency shall be subject to the following duties and responsibilities:
(a) It is the responsibility of the agent or patient to notify the health care provider of the existence of the health care agency and any amendment or revocation thereof. A health care provider furnished with a copy of a health care agency shall make it a part of the patient’s medical records and shall enter in the records any change in or termination of the health care agency by the principal that becomes known to the provider. Whenever a provider believes a patient may lack capacity to give informed consent to health care which the provider deems necessary, the provider shall consult with any available health care agent known to the provider who then has power to act for the patient under a health care agency.
(b) A health care decision made by an agent in accordance with the terms of a health care agency shall be complied with by every health care provider to whom the decision is communicated, subject to the provider’s right to administer treatment for the patient’s comfort care or alleviation of pain; but if the provider is unwilling to comply with the agent’s decision, the provider shall promptly inform the agent who shall then be responsible to make the necessary arrangements for the transfer of the patient to another provider. It is understood that a provider who is unwilling to comply with the agent’s decision will continue to afford reasonably necessary consultation and care in connection with the transfer.
(c) At the patient’s expense and subject to reasonable rules of the health care provider to prevent disruption of the patient’s health care, each health care provider shall give an agent authorized to receive such information under a health care agency the same right the principal has to examine and copy any part or all of the patient’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.
(d) If and to the extent a health care agency empowers the agent to
(1) make an anatomical gift on behalf of the principal under the Uniform Anatomical Gift Act, as now or hereafter amended, or
(2) authorize an autopsy of the principal’s body pursuant to Section 2 of “An Act in relation to autopsy of dead bodies”, approved August 13, 1965, as now or hereafter amended, or
(3) direct the disposition of the principal’s remains, the decision by an authorized agent as to anatomical gift, autopsy approval or remains disposition shall be deemed the act of the principal and shall control over the decision of other persons who might otherwise have priority; and each person to whom a direction by the agent in accordance with the terms of the agency is communicated shall comply with such direction.
755 ILCS 45/4-8: Immunities of health care providers, agents and others in relation to health care agencies.
Each health care provider and each other person who acts in good faith reliance on any direction or decision by the agent that is not clearly contrary to the terms of a health care agency (a “reliant”) will be protected and released to the same extent as though the reliant had dealt directly with the principal as a fully-competent person. Without limiting the generality of the foregoing, the following specific principles shall also govern, protect and validate the acts of the agent and each reliant:
(a) No reliant shall be subject to any type of civil or criminal liability or discipline for unprofessional conduct for complying with any direction or decision by the agent, even if death or injury to the patient ensues.
(b) No reliant shall be subject to any type of civil or criminal liability or discipline for unprofessional conduct for failure to comply with any direction or decision by the agent that violates the reliant’s conscience rights, as long as the reliant promptly informs the agent of reliant’s refusal or failure to comply with such direction or decision by the agent. The agent shall then be responsible to make the necessary arrangements for the transfer of the patient to another provider. It is understood that a provider who is unwilling to comply with the agent’s decision will continue to afford reasonably necessary consultation and care in connection with the transfer.
(c) If the actions of a health care provider who fails to comply with any direction or decision by the agent are substantially in accord with reasonable medical standards at the time of reference and the provider cooperates in the transfer of the patient pursuant to subsection (b) of Section 4-7 of this Act, the provider shall not be subject to any type of civil or criminal liability or discipline for unprofessional conduct for failure to comply with the agent.
(d) No agent who in good faith acts with due care for the benefit of the patient and in accordance with the terms of a health care agency, or who fails to act, shall be subject to any type of civil or criminal liability for such action or inaction.
(e) If the patient’s death results from withholding or withdrawing life-sustaining treatment in accordance with the terms of a health care agency, the death shall not constitute a suicide or homicide for any purpose under any statute or other rule of law and shall not impair or invalidate any insurance, annuity or other type of contract that is conditioned on the life or death of the patient, any term of the contract to the contrary notwithstanding.
755 ILCS 45/4-9: Penalties.
All persons shall be subject to the following sanctions in relation to health care agencies, in addition to all other sanctions applicable under any other law or rule of professional conduct:
(a) Any person shall be civilly liable who, without the principal’s consent, wilfully conceals, cancels or alters a health care agency or any amendment or revocation of the agency or who falsifies or forges a health care agency, amendment or revocation.
(b) A person who falsifies or forges a health care agency or wilfully conceals or withholds personal knowledge of an amendment or revocation of a health care agency with the intent to cause a withholding or withdrawal of life-sustaining or death-delaying procedures contrary to the intent of the principal and thereby, because of such act, directly causes life-sustaining or death-delaying procedures to be withheld or withdrawn and death to the patient to be hastened shall be subject to prosecution for involuntary manslaughter.
(c) Any person who requires or prevents execution of a health care agency as a condition of insuring or providing any type of health care services to the patient shall be civilly liable and guilty of a Class A misdemeanor.See Form.
755 ILCS 45/4-11: Applicability – inconsistent Acts.
This Article applies to all health care providers and other persons in relation to all health care agencies on and after the effective date of this Article. This Article supersedes all other Illinois Acts or parts thereof existing on the effective date of this Article to the extent such other Acts are inconsistent with the terms and operation of this Article; provided, that this Article does not affect the law governing emergency health care. If the principal has a living will under the “Illinois Living Will Act”, as now or hereafter amended, the living will shall not be operative so long as an agent is available who is authorized by a health care agency to deal with the subject of life-sustaining or death-delaying procedures for and on behalf of the principal.
755 ILCS 45/4-12: 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.
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