legal analysis

Don’t Try This at Home…Though the Law Says Differently

By September 30, 2014No Comments
Frankenstein

Wikipedia

On September 24, 2014, the Illinois legislature enacted an amendment to the Illinois Power of Attorney Act.

The Act was changed to “simplify” the healthcare power of attorney form. Estate planning attorneys in Illinois have been watching this legislation for a while, hoping that it would die. Unfortunately, it lives and  the consequences we foresee are anything but simple.

In fact, it looks like our legislature gave our citizens an early Halloween scare. The problem is that this can produce genuinely monstrous results:

 

  1. No standard form is required. So in medical emergencies, doctors must use their own judgment about legal forms. Huh?
  2. The notice page that makes the suggested format legal is FIVE PAGES long, which includes a litany of questions users are to ask themselves and presumably include answers to on their healthcare power of attorney “form.” Yeah, right.
  3. The form you use can be “included” or “combined” with the statutory property power of attorney. Doing so will allow your bankers to read all about your health concerns and your doctors can do the same with issues concerning your finances. Did our legislature forget about HIPAA?
  4. The changes removes actual provisions regarding choice of agent…OK…so that’s a tad misleading – that guidance is somewhere in that FIVE PAGE notice. What is optional in the form of your choosing is selecting quality of life over length of live, with some mention about pain.
  5. The changes remove language from the suggested format that reflects actual U.S. congressional privacy laws for medical practitioners and third parties. This language is now placed in the statute. Presumably, users will review the Illinois Power of Attorney Act, understand it, then read FIVE PAGES of notice, understand that notice, and create this legally sound, uniquely tailored form. Yeah, right.
  6. The form also provides that successor agents are “optional.” Not providing successors has always been optional, lawyers just didn’t like saying so. We don’t like telling folks about that particular option because not providing successor agents is tantamount to driving 70 MPH on a busy highway with no seat belt or airbags.

Forget Frankenstein or Freddie Krueger, the new changes to the Illinois Power of Attorney Act are sufficiently scary  and worse – they’re REAL.

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