Page 11 - John Hundley 2011

Sharp Thinking

No. 46 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. April 2011

Major Changes to Health Care Powers

Of Attorney Set To Take Effect July 1

By John T. Hundley, Jhundley@lotsharp.com, 618-242-0246
Third of 3 Issues
The July 1, 2011 amendments to the Health Care Power of Effective July 1, P.A. 96-1195 makes
Attorney (“HCPA”) Law (755 ILCS 45/4-1 et seq.) constitute the sweeping changes to the law governing
most sweeping rewrite of that law since it was adopted 34 years powers of attorney both for health care
ago. and for property and financial affairs.
This issue discusses the changes
Widely-applauded for its more forward-thinking approach applicable to health-care powers only.
than the Living Will Statute (755 ILCS 35), this law allows the For discussion of the changes applic-
patient to designate an agent to make health-care able principally to property powers of
attorney, see issues Nos. 44-45
decisions for him, much the same as a property power of accessible under “Resources” at
attorney allows an agent to transact business matters for www.thesharpfirm.com.
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the principal.

P.A. 96-1195 retains that popular approach and improves upon it. The improvements start with
portions of the amendments which are applicable to property powers also, including a valuable
definition of what the statutes mean when they use the term “incapacitated”:

“Incapacitated” . . . means that the principal 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 of its branches has examined the principal and has
determined that the principal lacks decision making capacity; (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.

Also helpful are the amendments’ definitions of “terminal condition,” “permanent unconscious-
ness,” and “incurable or irreversible condition” (emphasis added):

“Incurable or irreversible condition” means an illness or injury (i) for which there is no
reasonable prospect of cure or recovery, (ii) that ultimately will cause the patient’s death even if
life-sustaining treatment is initiated or continued, (iii) that imposes severe pain or otherwise
imposes an inhumane burden on the patient, or (iv) for which initiating or continuing life-
sustaining treatment, in light of the patient’s medical condition, provides only minimal medical
benefit.

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As to the background of the Health Care Power of Attorney Law and its place in the array of statutes impacting medical-
care decision-making, see Sharp Thinking #25 (Oct. 2009), available at www.thesharpfirm.com.

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Sharp Thinking is an occasional newsletter of The Sharp Law Firm, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp
Thinking shall be construed to create an attorney-client relation where none previously has existed, nor with respect to any particular matter. The perspectives herein
constitute educational material on general legal topics and are not legal advice applicable to any particular situation. To establish an attorney-client relation or to obtain legal
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