Finance
Instrument: Durable Power of Attorney (DPOA)
What is it for?
The “durable power of attorney” (DPOA) allows an adult (the “principal”) to authorize another (the “agent”) to make property and financial decisions for the principal.
What does it do?
The DPOA allows a principal to appoint an agent to make either a broad or limited range of property and financial decisions on the principal’s behalf. The principal may specify in the DPOA the rights, powers, duties, limitations, immunities and other terms that apply to the agent’s authority and to all persons dealing with the agent. 755 Ill. Comp. Stat. Ann. 45/2-4(c). Depending on the terms of the DPOA, the agent may make a broad range of decisions regarding the principal’s property, including the principal’s Social Security benefits. For health care decisions, additional rules apply. 755 Ill. Comp. Stat. Ann. 45/4-3 et seq.
The DPOA is considered to be “durable,” which means the agent’s authority continues during a period when the principal lacks capacity or after a guardian is appointed. 755 Ill. Comp. Stat. Ann. 45/4-5.
In making decisions for the principal, the agent must act both in good faith for the benefit of the principal using due care, competence, and diligence, and also consistently with the terms of the DPOA. 755 Ill. Comp. Stat. Ann. 45/4-7(a).
Third parties must generally accept decisions made by the agent as if the principal had made them. They may, however, request the agent for a certification of the DPOA’s validity. 755 Ill. Comp. Stat. Ann. 45/4-8.
How does one make it?
The DPOA must be in writing, signed by the principal, and signed by an eligible adult witness to the principal’s signing, as well as notarized. 755 Ill. Comp. Stat. Ann. 45/3-3.6(a).
When does it come into effect?
The principal may specify in the DPOA when the agent’s authority will come into effect. 755 Ill. Comp. Stat. Ann. 45/2-4(a). For example, the agent’s authority may come into effect either immediately or only when the principal becomes “incapacitated,” which means the principal is “not fully able to manage his person or estate” due to a developmental or other disability. 755 Ill. Comp. Stat. Ann. 45/2-3(c-5) & 5/11a-2. Alternatively, a licensed physician may determine that the principal lacks “decision making capacity” in a written statement signed within 90 days of a personal examination of the principal. 755 Ill. Comp. Stat. Ann. 45/2-3(c-5).
How long does it last?
Unless the DPOA states an earlier termination date, the agent’s authority continues until the principal either dies or revokes or amends the DPOA. 755 Ill. Comp. Stat. Ann. 45/2-5.
How does one end it?
The principal may revoke a DPOA at any time provided the principal has the capacity to do so, at any time and in any manner communicated to the agent or to any other person related to the subject matter of the agency. Note that executing a subsequent DPOA does not automatically revoke a prior DPOA unless the subsequent DPOA specifically states that it does so. 755 Ill. Comp. Stat. Ann. 45/2-5.
A court may also revoke a DPOA upon petition by any interested person that the DPOA is no longer necessary. 755 Ill. Comp. Stat. Ann. 45/2-10.
What does an example look like?
Illinois provides a statutory DPOA form at 755 Ill. Comp. Stat. Ann. 45/3-3. Illinois Legal Aid Online has an interactive tool for creating a DPOA with instructions here.
What else should one know?
Illinois’ DPOA is not based on the Uniform Power of Attorney Act.
Updated August 2022
Education
Instrument: Delegation of Rights (DR)
What is it for?
A “delegation of rights” (DR) allows an adult student eligible for special education services to transfer the rights to make decisions about that student’s education to someone (the “designee”) that the student chooses.
What does it do?
The DR transfers decision-making power regarding an adult student’s education to the designee, who is empowered to make educational decisions on behalf of the adult student. 105 Ill. Comp. Stat. Ann. 5/14-6.10(c).
Notwithstanding the DR, the student retains the right to be present during the development of the student’s individualized education program and to raise issues or concerns about the student’s individualized education program. 105 Ill. Comp. Stat. Ann. 5/14-6.10(c)(D).
How does one make it?
A DR must be in writing and signed by the student or verified by some other means such as audio, video, or an alternative format compatible with the student’s disability showing that the student agrees to the DR. 105 Ill. Comp. Stat. Ann. 5/14-6.10(c)(2)(B). The DR must also be signed or verified by some other means that the designee accepts the delegation. 105 Ill. Comp. Stat. Ann. 5/14-6.10(c)(2)(C).
The adult student must not have been adjudged incompetent. 105 Ill. Comp. Stat. Ann. 5/14-6.10(c)(2)(D)(III).
When does it come into effect?
The designee’s authority comes into effect upon the date the DR is executed. 105 Ill. Comp. Stat. Ann. 5/14-6.10(c)(2)(C).
How long does it last?
The DR lasts from one year from the date of execution, although the student may renew the DR each year by a written or other similarly formal authorization. 105 Ill. Comp. Stat. Ann. 5/14-6.10(c)(2)(A).
How does one end it?
A student may end a DR at any time and assume the right to make decisions regarding their education. If the student chooses to revoke prior to the DR’s expiration, the student must notify the school district immediately. 105 Ill. Comp. Stat. Ann. 5/14-6.10(c).
What does an example look like?
A statutory form is available at 105 Ill. Comp. Stat. Ann. 5/14-6.10(c)(E).
What else should one know?
School districts are required to notify parents and students of their option to execute a DR no later than when the student turns 17 years old. 105 Ill. Comp. Stat. Ann. 5/14-6.10(b).
Updated August 2022
Health
Instrument: Power of Attorney for Health Care (POAHC)
What is it for?
The “power of attorney for health care” (POAHC) allows an adult (the “principal”) to choose another adult (the “health care agent”) to make health care decisions for them either when the principal is unable to do so, or if the principal does not want to make them for themselves.
What does it do?
Unless specifically limited by the POAHC itself, the POAHC empowers the health care agent to consent to or refuse or withdraw any type of health care for the principal, as well as to receive all types of information about the principal’s health care to the same extent as the principal. 755 Ill. Comp. Stat. Ann. 45/4-3.
This may include decisions about:
(1) giving, refusing, or withdrawing consent to any and all types of medical care, treatment, or procedures relating to the physical or mental health of the principal, including any medication program, surgical procedures, life-sustaining treatment, or provision of food and fluids for the principal;
(2) admitting or discharging the principal from any and all types of hospitals, institutions, homes, residential or nursing facilities, treatment centers, and other health care institutions providing personal care or treatment for any type of physical or mental condition; or
(3) contracting for any and all types of health care services and facilities in the name of and on behalf of the principal and to bind the principal to pay for all such services and facilities, as well as using the principal’s property to pay health care costs. 755 Ill. Comp. Stat. Ann. 45/4-10(c)
Health care providers are generally required to comply with decisions made by a health care agent as if the principal had made those decisions on their own, as well as providing the agent with access to the principal’s medical records. 755 Ill. Comp. Stat. Ann. 45/4-7(b) & (c).
The POAHC is one type of “health care agency.” 755 Ill. Comp. Stat. Ann. 45/4-4(c). Another kind of health care agency is a living will. The POAHC may also be called an “advance directive.” 755 Ill. Comp. Stat. Ann. 45/4-10(b).
How does one make it?
A POAHC must be in writing, whether physical or electronic, and signed by the principal and health care agent through written signatures or initials, electronic signatures, or computer-generated signature codes. It need not be witnessed or notarized. 755 Ill. Comp. Stat. Ann. 45/4-10.
When does it come into effect?
The principal can choose when the agent’s authority comes into effect. 755 Ill. Comp. Stat. Ann. 45/4-10(b). By default, the agent is only authorized to make health care decisions for the principal when the principal lacks “decisional capacity,” which means the principal’s ability both to understand and appreciate the nature and consequences of a decision regarding medical treatment and also to reach and communicate an informed decision. 755 Ill. Comp. Stat. Ann. 45/4-10(d) & 40/10. Whether the principal lacks “decisional capacity” is determined by the principal’s attending physician. 755 Ill. Comp. Stat. Ann. 45/4-10(d).
However, the principal can also allow some or all of their health care agent’s powers to begin immediately. For example, the principal can state in the POAHC that the agent’s authority to access the principal’s medical records begins immediately, while the agent’s authority to make health care decisions for the principal comes into effect only when the principal is unable to do so on their own. 755 Ill. Comp. Stat. Ann. 45/4-10(b).
How long does it last?
Generally, the health care agent’s authority lasts until the principal dies or revokes the POAHC, unless the POAHC states otherwise. 755 Ill. Comp. Stat. Ann. 45/4-10(b).
How does one end it?
To revoke a POAHC, the principal may at any time destroy or deface the POAHC document; sign and date a written or electronic revocation of the POAHC either on their own or by directing another person to do so; or orally or otherwise express their intent to revoke the POAHC in the presence of an adult witness who signs and dates a writing confirming that the expression was made. For an electronic POAHC, deletion of the POAHC also constitutes revocation. 755 Ill. Comp. Stat. Ann. 45/4-6.
What does an example look like?
Illinois provides a statutory form at 755 Ill. Comp. Stat. Ann. 45/4-10. The State of Illinois Department of Public Health also provides an example here.
What else should one know?
Requiring or preventing execution of a POAHC as a condition of insuring or providing any type of health care services to the patient is a Class A misdemeanor. 755 Ill. Comp. Stat. Ann. 45/4-9(c).
Update August 2022
General
Instrument: Supported Decision-Making Agreement (SDMA)
What is it for?
The “supported decision-making agreement” (SDMA) allows an adult with intellectual or developmental disability (the “principal”) to designate another adult as their supporter for a wide range of decisions.
What does it do?
The SDMA authorizes a supporter to assist the principal with a number of everyday life decisions that may include decisions regarding medical care and treatment, one’s residence, work, finances, and social life. 755 Ill. Comp. Stat. Ann. 9/10.
A supporter is authorized to provide only the kinds of support specified in the SDMA. 755 Ill. Comp. Stat. Ann. 9/25. The kinds of assistance a supporter can provide may include:
1) Assisting the principal in understanding information, options, responsibilities, and consequences of the life decisions of the principal, including those decisions related to their affairs or support services;
(2) Helping the principal access, obtain, and understand any information that is relevant to any given life decision, including a medical, psychological, financial, or educational decision, or any treatment records or records necessary to manage their affairs or support services;
(3) Assisting the principal in finding, obtaining, making appointments for, and implementing their support services or service plans;
(4) Helping the principal monitor information about their affairs or support services, including keeping track of future necessary or recommended services; and
(5) Ascertaining the wishes and decisions of the principal in order to advocate for them. 755 Ill. Comp. Stat. Ann. 9/30(a).
The supporter is responsible for acting with the care, competence, and diligence ordinarily exercised by an individual in a similar circumstance and for seeking out training and education regarding the responsibilities and limitations of the supporter role. 755 Ill. Comp. Stat. Ann. 9/30(b) & (c).
The supporter may not be compensated for providing supports and is not allowed to exert undue influence on the principal, obtain information not related to decisions the supporter is authorized to provide support for, or use information obtained to support the principal for other purposes. 755 Ill. Comp. Stat. Ann. 9/35.
Despite executing an SDMA, the principal retains the right to make decisions or access their personal information independently of their supporter. 755 Ill. Comp. Stat. Ann. 9/15(c) & 40(c).
Third parties must recognize the supporter’s authority as described in the SDMA. 755 Ill. Comp. Stat. Ann. 9/55(a). Any decision or request made or communicated with the assistance of a supporter named in an SDMA must be recognized by third parties as the decision or request of the principal. 755 Ill. Comp. Stat. Ann. 9/60.
How does one make it?
The SDMA must be in writing and signed and dated by both the principal and their supporter before two adult witnesses, neither of whom may be the supporter. 755 Ill. Comp. Stat. Ann. 9/45.
A supporter generally may not be an employee or employer of the principal, a paid direct support worker, an employee of an agency providing care for the principal, the subject of a civil or criminal order prohibiting contact with the principal, or a person who has been convicted of one of several kinds of crimes. 755 Ill. Comp. Stat. Ann. 9/20.
When does it come into effect?
Presumably, the supporter’s authority comes into effect immediately upon the SDMA’s execution.
How long does it last?
The SDMA lasts until either the principal dies, revokes the SDMA, or executes a new SDMA. Also, an SDMA ends automatically if the principal obtains a restraining order against the supporter or if the Office of Inspector General or Adult Protective Services substantiates an allegation of abuse or neglect by the supporter. 755 Ill. Comp. Stat. Ann. 9/70.
How does one end it?
Either the principal or the supporter may end the SDMA. The principal may revoke their SDMA at any time either destroying the SDMA or instructing someone else to do so, making a written and signed revocation statement that is signed and dated by the principal, or verbally expressing the intent of the principal to revoke the SDMA in the presence of 2 witnesses. 755 Ill. Comp. Stat. Ann. 9/70(c). The supporter may resign simply by giving notice to the principal. 755 Ill. Comp. Stat. Ann. 9/70(d).
What does an example look like?
Illinois provides a statutory SDMA form at 755 Ill. Comp. Stat. Ann. 9/50.
What else should one know?
The execution of an SDMA may not be used as evidence of the principal’s capacity or incapacity. 755 Ill. Comp. Stat. Ann. 9/15(c).
Updated August 2022