101ST GENERAL ASSEMBLY
State of Illinois
2019 and 2020
HB4626

 

Introduced 2/5/2020, by Rep. William Davis

 

SYNOPSIS AS INTRODUCED:
 
755 ILCS 45/4-6  from Ch. 110 1/2, par. 804-6
755 ILCS 45/4-10  from Ch. 110 1/2, par. 804-10

    Amends the Illinois Power of Attorney Act. Provides that a principal may elect a 30-day delayed revocation of the principal's health care agency. Makes a corresponding change. Effective immediately.


LRB101 17492 LNS 66902 b

 

 

A BILL FOR

 

HB4626LRB101 17492 LNS 66902 b

1    AN ACT concerning civil law.
 
2    Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
 
4    Section 5. The Illinois Power of Attorney Act is amended by
5changing Sections 4-6 and 4-10 as follows:
 
6    (755 ILCS 45/4-6)  (from Ch. 110 1/2, par. 804-6)
7    Sec. 4-6. Revocation and amendment of health care agencies.
8    (a) Unless the principal elects a delayed revocation period
9pursuant to subsection (a-5), every Every health care agency
10may be revoked by the principal at any time, without regard to
11the principal's mental or physical condition, by any of the
12following methods:
13        1. By being obliterated, burnt, torn or otherwise
14    destroyed or defaced in a manner indicating intention to
15    revoke;
16        2. By a written revocation of the agency signed and
17    dated by the principal or person acting at the direction of
18    the principal, regardless of whether the written
19    revocation is in an electronic or hard copy format;
20        3. By an oral or any other expression of the intent to
21    revoke the agency in the presence of a witness 18 years of
22    age or older who signs and dates a writing confirming that
23    such expression of intent was made; or

 

 

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1        4. For an electronic health care agency, by deleting in
2    a manner indicating the intention to revoke. An electronic
3    health care agency may be revoked electronically using a
4    generic, technology-neutral system in which each user is
5    assigned a unique identifier that is securely maintained
6    and in a manner that meets the regulatory requirements for
7    a digital or electronic signature. Compliance with the
8    standards defined in the Electronic Commerce Security Act
9    or the implementing rules of the Hospital Licensing Act for
10    medical record entry authentication for author validation
11    of the documentation, content accuracy, and completeness
12    meets this standard.
13    (a-5) A principal may elect a 30-day delay of the
14revocation of the principal's health care agency. If a
15principal makes this election, the principal's revocation
16shall be delayed for 30 days after the principal communicates
17his or her intent to revoke.
18    (b) Every health care agency may be amended at any time by
19a written amendment signed and dated by the principal or person
20acting at the direction of the principal.
21    (c) Any person, other than the agent, to whom a revocation
22or amendment is communicated or delivered shall make all
23reasonable efforts to inform the agent of that fact as promptly
24as possible.
25(Source: P.A. 101-163, eff. 1-1-20.)
 

 

 

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1    (755 ILCS 45/4-10)  (from Ch. 110 1/2, par. 804-10)
2    Sec. 4-10. Statutory short form power of attorney for
3health care.
4    (a) The form prescribed in this Section (sometimes also
5referred to in this Act as the "statutory health care power")
6may be used to grant an agent powers with respect to the
7principal's own health care; but the statutory health care
8power is not intended to be exclusive nor to cover delegation
9of a parent's power to control the health care of a minor
10child, and no provision of this Article shall be construed to
11invalidate or bar use by the principal of any other or
12different form of power of attorney for health care.
13Nonstatutory health care powers must be executed by the
14principal, designate the agent and the agent's powers, and
15comply with the limitations in Section 4-5 of this Article, but
16they need not be witnessed or conform in any other respect to
17the statutory health care power.
18    No specific format is required for the statutory health
19care power of attorney other than the notice must precede the
20form. The statutory health care power may be included in or
21combined with any other form of power of attorney governing
22property or other matters.
23    The signature and execution requirements set forth in this
24Article are satisfied by: (i) written signatures or initials;
25or (ii) electronic signatures or computer-generated signature
26codes. Electronic documents under this Act may be created,

 

 

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1signed, or revoked electronically using a generic,
2technology-neutral system in which each user is assigned a
3unique identifier that is securely maintained and in a manner
4that meets the regulatory requirements for a digital or
5electronic signature. Compliance with the standards defined in
6the Electronic Commerce Security Act or the implementing rules
7of the Hospital Licensing Act for medical record entry
8authentication for author validation of the documentation,
9content accuracy, and completeness meets this standard.
10    (b) The Illinois Statutory Short Form Power of Attorney for
11Health Care shall be substantially as follows:
 
12
NOTICE TO THE INDIVIDUAL SIGNING
13
THE POWER OF ATTORNEY FOR HEALTH CARE
14    No one can predict when a serious illness or accident might
15occur. When it does, you may need someone else to speak or make
16health care decisions for you. If you plan now, you can
17increase the chances that the medical treatment you get will be
18the treatment you want.
19    In Illinois, you can choose someone to be your "health care
20agent". Your agent is the person you trust to make health care
21decisions for you if you are unable or do not want to make them
22yourself. These decisions should be based on your personal
23values and wishes.
24    It is important to put your choice of agent in writing. The
25written form is often called an "advance directive". You may

 

 

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1use this form or another form, as long as it meets the legal
2requirements of Illinois. There are many written and on-line
3resources to guide you and your loved ones in having a
4conversation about these issues. You may find it helpful to
5look at these resources while thinking about and discussing
6your advance directive.
 
7
WHAT ARE THE THINGS I WANT MY
8
HEALTH CARE AGENT TO KNOW?
9    The selection of your agent should be considered carefully,
10as your agent will have the ultimate decision-making authority
11once this document goes into effect, in most instances after
12you are no longer able to make your own decisions. While the
13goal is for your agent to make decisions in keeping with your
14preferences and in the majority of circumstances that is what
15happens, please know that the law does allow your agent to make
16decisions to direct or refuse health care interventions or
17withdraw treatment. Your agent will need to think about
18conversations you have had, your personality, and how you
19handled important health care issues in the past. Therefore, it
20is important to talk with your agent and your family about such
21things as:
22        (i) What is most important to you in your life?
23        (ii) How important is it to you to avoid pain and
24    suffering?
25        (iii) If you had to choose, is it more important to you

 

 

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1    to live as long as possible, or to avoid prolonged
2    suffering or disability?
3        (iv) Would you rather be at home or in a hospital for
4    the last days or weeks of your life?
5        (v) Do you have religious, spiritual, or cultural
6    beliefs that you want your agent and others to consider?
7        (vi) Do you wish to make a significant contribution to
8    medical science after your death through organ or whole
9    body donation?
10        (vii) Do you have an existing advance directive, such
11    as a living will, that contains your specific wishes about
12    health care that is only delaying your death? If you have
13    another advance directive, make sure to discuss with your
14    agent the directive and the treatment decisions contained
15    within that outline your preferences. Make sure that your
16    agent agrees to honor the wishes expressed in your advance
17    directive.
 
18
WHAT KIND OF DECISIONS CAN MY AGENT MAKE?
19    If there is ever a period of time when your physician
20determines that you cannot make your own health care decisions,
21or if you do not want to make your own decisions, some of the
22decisions your agent could make are to:
23        (i) talk with physicians and other health care
24    providers about your condition.
25        (ii) see medical records and approve who else can see

 

 

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1    them.
2        (iii) give permission for medical tests, medicines,
3    surgery, or other treatments.
4        (iv) choose where you receive care and which physicians
5    and others provide it.
6        (v) decide to accept, withdraw, or decline treatments
7    designed to keep you alive if you are near death or not
8    likely to recover. You may choose to include guidelines
9    and/or restrictions to your agent's authority.
10        (vi) agree or decline to donate your organs or your
11    whole body if you have not already made this decision
12    yourself. This could include donation for transplant,
13    research, and/or education. You should let your agent know
14    whether you are registered as a donor in the First Person
15    Consent registry maintained by the Illinois Secretary of
16    State or whether you have agreed to donate your whole body
17    for medical research and/or education.
18        (vii) decide what to do with your remains after you
19    have died, if you have not already made plans.
20        (viii) talk with your other loved ones to help come to
21    a decision (but your designated agent will have the final
22    say over your other loved ones).
23    Your agent is not automatically responsible for your health
24care expenses.
 
25
WHOM SHOULD I CHOOSE TO BE MY HEALTH CARE AGENT?

 

 

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1    You can pick a family member, but you do not have to. Your
2agent will have the responsibility to make medical treatment
3decisions, even if other people close to you might urge a
4different decision. The selection of your agent should be done
5carefully, as he or she will have ultimate decision-making
6authority for your treatment decisions once you are no longer
7able to voice your preferences. Choose a family member, friend,
8or other person who:
9        (i) is at least 18 years old;
10        (ii) knows you well;
11        (iii) you trust to do what is best for you and is
12    willing to carry out your wishes, even if he or she may not
13    agree with your wishes;
14        (iv) would be comfortable talking with and questioning
15    your physicians and other health care providers;
16        (v) would not be too upset to carry out your wishes if
17    you became very sick; and
18        (vi) can be there for you when you need it and is
19    willing to accept this important role.
 
20
WHAT IF MY AGENT IS NOT AVAILABLE OR IS
21
UNWILLING TO MAKE DECISIONS FOR ME?
22    If the person who is your first choice is unable to carry
23out this role, then the second agent you chose will make the
24decisions; if your second agent is not available, then the
25third agent you chose will make the decisions. The second and

 

 

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1third agents are called your successor agents and they function
2as back-up agents to your first choice agent and may act only
3one at a time and in the order you list them.
 
4
WHAT WILL HAPPEN IF I DO NOT
5
CHOOSE A HEALTH CARE AGENT?
6    If you become unable to make your own health care decisions
7and have not named an agent in writing, your physician and
8other health care providers will ask a family member, friend,
9or guardian to make decisions for you. In Illinois, a law
10directs which of these individuals will be consulted. In that
11law, each of these individuals is called a "surrogate".
12    There are reasons why you may want to name an agent rather
13than rely on a surrogate:
14        (i) The person or people listed by this law may not be
15    who you would want to make decisions for you.
16        (ii) Some family members or friends might not be able
17    or willing to make decisions as you would want them to.
18        (iii) Family members and friends may disagree with one
19    another about the best decisions.
20        (iv) Under some circumstances, a surrogate may not be
21    able to make the same kinds of decisions that an agent can
22    make.
 
23
WHAT IF THERE IS NO ONE AVAILABLE
24
WHOM I TRUST TO BE MY AGENT?

 

 

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1    In this situation, it is especially important to talk to
2your physician and other health care providers and create
3written guidance about what you want or do not want, in case
4you are ever critically ill and cannot express your own wishes.
5You can complete a living will. You can also write your wishes
6down and/or discuss them with your physician or other health
7care provider and ask him or her to write it down in your
8chart. You might also want to use written or on-line resources
9to guide you through this process.
 
10
WHAT DO I DO WITH THIS FORM ONCE I COMPLETE IT?
11    Follow these instructions after you have completed the
12form:
13        (i) Sign the form in front of a witness. See the form
14    for a list of who can and cannot witness it.
15        (ii) Ask the witness to sign it, too.
16        (iii) There is no need to have the form notarized.
17        (iv) Give a copy to your agent and to each of your
18    successor agents.
19        (v) Give another copy to your physician.
20        (vi) Take a copy with you when you go to the hospital.
21        (vii) Show it to your family and friends and others who
22    care for you.
 
23
WHAT IF I CHANGE MY MIND?
24    You may change your mind at any time. If you do, tell

 

 

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1someone who is at least 18 years old that you have changed your
2mind, and/or destroy your document and any copies. If you wish,
3fill out a new form and make sure everyone you gave the old
4form to has a copy of the new one, including, but not limited
5to, your agents and your physicians. If you are concerned you
6may revoke your power of attorney at a time when you may need
7it the most, you may initial the box at the end of the form to
8indicate that you would like a 30-day waiting period after you
9voice your intent to revoke your power of attorney. This means
10if your agent is making decisions for you during that time,
11your agent can continue to make decisions on your behalf. This
12election is purely optional, and you do not have to choose it.
13If you do not choose this option, you can change your mind and
14revoke the power of attorney at any time.
 
15
WHAT IF I DO NOT WANT TO USE THIS FORM?
16    In the event you do not want to use the Illinois statutory
17form provided here, any document you complete must be executed
18by you, designate an agent who is over 18 years of age and not
19prohibited from serving as your agent, and state the agent's
20powers, but it need not be witnessed or conform in any other
21respect to the statutory health care power.
22    If you have questions about the use of any form, you may
23want to consult your physician, other health care provider,
24and/or an attorney.
 

 

 

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1
MY POWER OF ATTORNEY FOR HEALTH CARE

 
2THIS POWER OF ATTORNEY REVOKES ALL PREVIOUS POWERS OF ATTORNEY
3FOR HEALTH CARE. (You must sign this form and a witness must
4also sign it before it is valid)
 
5My name (Print your full name):..........
6My address:..................................................
 
7I WANT THE FOLLOWING PERSON TO BE MY HEALTH CARE AGENT
8(an agent is your personal representative under state and
9federal law):
10(Agent name).................
11(Agent address).............
12(Agent phone number).........................................
 
13(Please check box if applicable) .... If a guardian of my
14person is to be appointed, I nominate the agent acting under
15this power of attorney as guardian.
 
16SUCCESSOR HEALTH CARE AGENT(S) (optional):
17    If the agent I selected is unable or does not want to make
18health care decisions for me, then I request the person(s) I
19name below to be my successor health care agent(s). Only one
20person at a time can serve as my agent (add another page if you
21want to add more successor agent names):

 

 

HB4626- 13 -LRB101 17492 LNS 66902 b

1.....................
2(Successor agent #1 name, address and phone number)
3..........
4(Successor agent #2 name, address and phone number)
 
5MY AGENT CAN MAKE HEALTH CARE DECISIONS FOR ME, INCLUDING:
6        (i) Deciding to accept, withdraw or decline treatment
7    for any physical or mental condition of mine, including
8    life-and-death decisions.
9        (ii) Agreeing to admit me to or discharge me from any
10    hospital, home, or other institution, including a mental
11    health facility.
12        (iii) Having complete access to my medical and mental
13    health records, and sharing them with others as needed,
14    including after I die.
15        (iv) Carrying out the plans I have already made, or, if
16    I have not done so, making decisions about my body or
17    remains, including organ, tissue or whole body donation,
18    autopsy, cremation, and burial.
19    The above grant of power is intended to be as broad as
20possible so that my agent will have the authority to make any
21decision I could make to obtain or terminate any type of health
22care, including withdrawal of nutrition and hydration and other
23life-sustaining measures.
 
24I AUTHORIZE MY AGENT TO (please check any one box):

 

 

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1    .... Make decisions for me only when I cannot make them for
2    myself. The physician(s) taking care of me will determine
3    when I lack this ability.
4        (If no box is checked, then the box above shall be
5    implemented.) OR
6    .... Make decisions for me only when I cannot make them for
7    myself. The physician(s) taking care of me will determine
8    when I lack this ability. Starting now, for the purpose of
9    assisting me with my health care plans and decisions, my
10    agent shall have complete access to my medical and mental
11    health records, the authority to share them with others as
12    needed, and the complete ability to communicate with my
13    personal physician(s) and other health care providers,
14    including the ability to require an opinion of my physician
15    as to whether I lack the ability to make decisions for
16    myself. OR
17    .... Make decisions for me starting now and continuing
18    after I am no longer able to make them for myself. While I
19    am still able to make my own decisions, I can still do so
20    if I want to.
 
21    The subject of life-sustaining treatment is of particular
22importance. Life-sustaining treatments may include tube
23feedings or fluids through a tube, breathing machines, and CPR.
24In general, in making decisions concerning life-sustaining
25treatment, your agent is instructed to consider the relief of

 

 

HB4626- 15 -LRB101 17492 LNS 66902 b

1suffering, the quality as well as the possible extension of
2your life, and your previously expressed wishes. Your agent
3will weigh the burdens versus benefits of proposed treatments
4in making decisions on your behalf.
5    Additional statements concerning the withholding or
6removal of life-sustaining treatment are described below.
7These can serve as a guide for your agent when making decisions
8for you. Ask your physician or health care provider if you have
9any questions about these statements.
 
10SELECT ONLY ONE STATEMENT BELOW THAT BEST EXPRESSES YOUR WISHES
11(optional):
12    .... The quality of my life is more important than the
13    length of my life. If I am unconscious and my attending
14    physician believes, in accordance with reasonable medical
15    standards, that I will not wake up or recover my ability to
16    think, communicate with my family and friends, and
17    experience my surroundings, I do not want treatments to
18    prolong my life or delay my death, but I do want treatment
19    or care to make me comfortable and to relieve me of pain.
20    .... Staying alive is more important to me, no matter how
21    sick I am, how much I am suffering, the cost of the
22    procedures, or how unlikely my chances for recovery are. I
23    want my life to be prolonged to the greatest extent
24    possible in accordance with reasonable medical standards.
 

 

 

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1SPECIFIC LIMITATIONS TO MY AGENT'S DECISION-MAKING AUTHORITY:
2    The above grant of power is intended to be as broad as
3possible so that your agent will have the authority to make any
4decision you could make to obtain or terminate any type of
5health care. If you wish to limit the scope of your agent's
6powers or prescribe special rules or limit the power to
7authorize autopsy or dispose of remains, you may do so
8specifically in this form.
9..................................
10..............................
 
11My signature:..................
12Today's date:................................................
 
13
DELAYED REVOCATION
14    .... I elect to delay revocation of this power of attorney
15for 30 days after I communicate my intent to revoke it.
16    .... I elect for the revocation of this power of attorney
17to take effect immediately if I communicate my intent to revoke
18it.
 
19HAVE YOUR WITNESS AGREE TO WHAT IS WRITTEN BELOW, AND THEN
20COMPLETE THE SIGNATURE PORTION:
21    I am at least 18 years old. (check one of the options
22below):
23    .... I saw the principal sign this document, or

 

 

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1    .... the principal told me that the signature or mark on
2    the principal signature line is his or hers.
3    I am not the agent or successor agent(s) named in this
4document. I am not related to the principal, the agent, or the
5successor agent(s) by blood, marriage, or adoption. I am not
6the principal's physician, advanced practice registered nurse,
7dentist, podiatric physician, optometrist, psychologist, or a
8relative of one of those individuals. I am not an owner or
9operator (or the relative of an owner or operator) of the
10health care facility where the principal is a patient or
11resident.
12Witness printed name:............
13Witness address:..............
14Witness signature:...............
15Today's date:................................................
 
16    (c) The statutory short form power of attorney for health
17care (the "statutory health care power") authorizes the agent
18to make any and all health care decisions on behalf of the
19principal which the principal could make if present and under
20no disability, subject to any limitations on the granted powers
21that appear on the face of the form, to be exercised in such
22manner as the agent deems consistent with the intent and
23desires of the principal. The agent will be under no duty to
24exercise granted powers or to assume control of or
25responsibility for the principal's health care; but when

 

 

HB4626- 18 -LRB101 17492 LNS 66902 b

1granted powers are exercised, the agent will be required to use
2due care to act for the benefit of the principal in accordance
3with the terms of the statutory health care power and will be
4liable for negligent exercise. The agent may act in person or
5through others reasonably employed by the agent for that
6purpose but may not delegate authority to make health care
7decisions. The agent may sign and deliver all instruments,
8negotiate and enter into all agreements and do all other acts
9reasonably necessary to implement the exercise of the powers
10granted to the agent. Without limiting the generality of the
11foregoing, the statutory health care power shall include the
12following powers, subject to any limitations appearing on the
13face of the form:
14        (1) The agent is authorized to give consent to and
15    authorize or refuse, or to withhold or withdraw consent to,
16    any and all types of medical care, treatment or procedures
17    relating to the physical or mental health of the principal,
18    including any medication program, surgical procedures,
19    life-sustaining treatment or provision of food and fluids
20    for the principal.
21        (2) The agent is authorized to admit the principal to
22    or discharge the principal from any and all types of
23    hospitals, institutions, homes, residential or nursing
24    facilities, treatment centers and other health care
25    institutions providing personal care or treatment for any
26    type of physical or mental condition. The agent shall have

 

 

HB4626- 19 -LRB101 17492 LNS 66902 b

1    the same right to visit the principal in the hospital or
2    other institution as is granted to a spouse or adult child
3    of the principal, any rule of the institution to the
4    contrary notwithstanding.
5        (3) The agent is authorized to contract for any and all
6    types of health care services and facilities in the name of
7    and on behalf of the principal and to bind the principal to
8    pay for all such services and facilities, and to have and
9    exercise those powers over the principal's property as are
10    authorized under the statutory property power, to the
11    extent the agent deems necessary to pay health care costs;
12    and the agent shall not be personally liable for any
13    services or care contracted for on behalf of the principal.
14        (4) At the principal's expense and subject to
15    reasonable rules of the health care provider to prevent
16    disruption of the principal's health care, the agent shall
17    have the same right the principal has to examine and copy
18    and consent to disclosure of all the principal's medical
19    records that the agent deems relevant to the exercise of
20    the agent's powers, whether the records relate to mental
21    health or any other medical condition and whether they are
22    in the possession of or maintained by any physician,
23    psychiatrist, psychologist, therapist, hospital, nursing
24    home or other health care provider. The authority under
25    this paragraph (4) applies to any information governed by
26    the Health Insurance Portability and Accountability Act of

 

 

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1    1996 ("HIPAA") and regulations thereunder. The agent
2    serves as the principal's personal representative, as that
3    term is defined under HIPAA and regulations thereunder.
4        (5) The agent is authorized: to direct that an autopsy
5    be made pursuant to Section 2 of the Autopsy Act; to make a
6    disposition of any part or all of the principal's body
7    pursuant to the Illinois Anatomical Gift Act, as now or
8    hereafter amended; and to direct the disposition of the
9    principal's remains.
10        (6) At any time during which there is no executor or
11    administrator appointed for the principal's estate, the
12    agent is authorized to continue to pursue an application or
13    appeal for government benefits if those benefits were
14    applied for during the life of the principal.
15    (d) A physician may determine that the principal is unable
16to make health care decisions for himself or herself only if
17the principal lacks decisional capacity, as that term is
18defined in Section 10 of the Health Care Surrogate Act.
19    (e) If the principal names the agent as a guardian on the
20statutory short form, and if a court decides that the
21appointment of a guardian will serve the principal's best
22interests and welfare, the court shall appoint the agent to
23serve without bond or security.
24(Source: P.A. 100-513, eff. 1-1-18; 101-81, eff. 7-12-19;
25101-163, eff. 1-1-20.)
 
26    Section 99. Effective date. This Act takes effect upon

 

 

HB4626- 21 -LRB101 17492 LNS 66902 b

1becoming law.