Pat Quinn, Governor
- Durable Power of Attorney for Health Care
- Living Will
Legal Cautions to Consider
Powers of attorney are authorized by state statute (755 ILCS 45/1 et seq.). A durable power of attorney allows a competent person (the "principal") to appoint an agent to make decisions for the principal when the principal is incapacitated and unable to make decisions. This period of incapacity may be caused by a medical situation, such as a coma, or a period of mental incapacity, such as mental illness.
In Illinois, all powers of attorney are automatically "durable" (by law) unless the document specifically states that the power of attorney is not meant to be durable. Nondurable powers of attorney are usually done for a specific transaction, like a real estate closing, and do not need to be "durable." "Durable" powers of attorney continue to be valid even after the principal is incapacitated.
There are two types of powers of attorney. One is for health care and personal care issues, the other is for financial and property management issues. The same person may serve as both the health care agent and the financial agent, or different individuals may be appointed. Likewise, the extent of the powers which the principal delegates to the agent may be very broad, or narrow and specific. These are matters at the discretion of the principal.
Third parties (such as a hospital or a bank) may rely upon the agentís authority to make decisions or transact the principalís business, if they are presented with an apparently valid document. Only if third parties know that the agent is not authorized to make decisions, or have sound reasons to be suspicious of the agent or the document, can they be held liable for the actions of the agent.
Because of this, a power of attorney is a powerful document. The principal, the person making the delegation of power to an agent, must totally trust the agent with his or her health and wealth. An agent who abuses his or her authority under a power of attorney may be "fired" by a principal (by the principal revoking the document) or may have a court cancel his or her authority (if the principal can no longer act).
In many cases of financial exploitation of older persons, the exploiters have the older person sign a financial power of attorney, which gives the exploiter an apparent "legal" right to withdraw funds from the older personís bank accounts and similar transactions. This makes it difficult to detect and stop the exploitation.
These documents are powerful tools that can be used to assist and protect an older person, or be misused to exploit that older person.
Much depends upon the trustworthiness of the appointed agent.
You can obtain free copies of Power of Attorney and Living Will forms by contacting the Senior HelpLine.
The Illinois Department on Aging's Legal Services Developer created an informational chart to aid in comparing the various Advance Directives and Other Legal Decision-making Tools available to you. NOTE: The chart is being updated and will be available soon.
To obtain free copies of Power of Attorney and Living Will forms, ...
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