Rep. Ann Williams

Filed: 5/5/2015

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 159

2    AMENDMENT NO. ______. Amend Senate Bill 159 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Illinois Power of Attorney Act is amended
5by changing Sections 4-5.1, 4-10, and 4-12 as follows:
 
6    (755 ILCS 45/4-5.1)
7    Sec. 4-5.1. Limitations on who may witness health care
8agencies.
9    (a) Every health care agency shall bear the signature of a
10witness to the signing of the agency. No witness may be under
1118 years of age. None of the following licensed professionals
12providing services to the principal may serve as a witness to
13the signing of a health care agency:
14        (1) the attending physician, advanced practice nurse,
15    physician assistant, dentist, podiatric physician,
16    optometrist, or psychologist mental health service

 

 

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1    provider of the principal, or a relative of the physician,
2    advanced practice nurse, physician assistant, dentist,
3    podiatric physician, optometrist, or psychologist mental
4    health service provider;
5        (2) an owner, operator, or relative of an owner or
6    operator of a health care facility in which the principal
7    is a patient or resident;
8        (3) a parent, sibling, or descendant, or the spouse of
9    a parent, sibling, or descendant, of either the principal
10    or any agent or successor agent, regardless of whether the
11    relationship is by blood, marriage, or adoption;
12        (4) an agent or successor agent for health care.
13    (b) The prohibition on the operator of a health care
14facility from serving as a witness shall extend to directors
15and executive officers of an operator that is a corporate
16entity but not other employees of the operator such as, but not
17limited to, non-owner chaplains or social workers, nurses, and
18other employees.
19(Source: P.A. 98-1113, eff. 1-1-15.)
 
20    (755 ILCS 45/4-10)  (from Ch. 110 1/2, par. 804-10)
21    Sec. 4-10. Statutory short form power of attorney for
22health care.
23    (a) The form prescribed in this Section (sometimes also
24referred to in this Act as the "statutory health care power")
25may be used to grant an agent powers with respect to the

 

 

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1principal's own health care; but the statutory health care
2power is not intended to be exclusive nor to cover delegation
3of a parent's power to control the health care of a minor
4child, and no provision of this Article shall be construed to
5invalidate or bar use by the principal of any other or
6different form of power of attorney for health care.
7Nonstatutory health care powers must be executed by the
8principal, designate the agent and the agent's powers, and
9comply with the limitations in Section 4-5 of this Article, but
10they need not be witnessed or conform in any other respect to
11the statutory health care power.
12    No specific format is required for the statutory health
13care power of attorney other than the notice must precede the
14form. The statutory health care power may be included in or
15combined with any other form of power of attorney governing
16property or other matters.
17    (b) The Illinois Statutory Short Form Power of Attorney for
18Health Care shall be substantially as follows:
 
19
NOTICE TO THE INDIVIDUAL SIGNING
20
THE POWER OF ATTORNEY FOR HEALTH CARE
21    No one can predict when a serious illness or accident might
22occur. When it does, you may need someone else to speak or make
23health care decisions for you. If you plan now, you can
24increase the chances that the medical treatment you get will be
25the treatment you want.

 

 

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1    In Illinois, you can choose someone to be your "health care
2agent". Your agent is the person you trust to make health care
3decisions for you if you are unable or do not want to make them
4yourself. These decisions should be based on your personal
5values and wishes.
6    It is important to put your choice of agent in writing. The
7written form is often called an "advance directive". You may
8use this form or another form, as long as it meets the legal
9requirements of Illinois. There are many written and on-line
10resources to guide you and your loved ones in having a
11conversation about these issues. You may find it helpful to
12look at these resources while thinking about and discussing
13your advance directive.
 
14
WHAT ARE THE THINGS I WANT MY
15
HEALTH CARE AGENT TO KNOW?
16    The selection of your agent should be considered carefully,
17as your agent will have the ultimate decision making authority
18once this document goes into effect, in most instances after
19you are no longer able to make your own decisions. While the
20goal is for your agent to make decisions in keeping with your
21preferences and in the majority of circumstances that is what
22happens, please know that the law does allow your agent to make
23decisions to direct or refuse health care interventions or
24withdraw treatment. Your agent will need to think about
25conversations you have had, your personality, and how you

 

 

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1handled important health care issues in the past. Therefore, it
2is important to talk with your agent and your family about such
3things as:
4        (i) What is most important to you in your life?
5        (ii) How important is it to you to avoid pain and
6    suffering?
7        (iii) If you had to choose, is it more important to you
8    to live as long as possible, or to avoid prolonged
9    suffering or disability?
10        (iv) Would you rather be at home or in a hospital for
11    the last days or weeks of your life?
12        (v) Do you have religious, spiritual, or cultural
13    beliefs that you want your agent and others to consider?
14        (vi) Do you wish to make a significant contribution to
15    medical science after your death through organ or whole
16    body donation?
17        (vii) Do you have an existing advanced directive, such
18    as a living will, that contains your specific wishes about
19    health care that is only delaying your death? If you have
20    another advance directive, make sure to discuss with your
21    agent the directive and the treatment decisions contained
22    within that outline your preferences. Make sure that your
23    agent agrees to honor the wishes expressed in your advance
24    directive.
 
25
WHAT KIND OF DECISIONS CAN MY AGENT MAKE?

 

 

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1    If there is ever a period of time when your physician
2determines that you cannot make your own health care decisions,
3or if you do not want to make your own decisions, some of the
4decisions your agent could make are to:
5        (i) talk with physicians and other health care
6    providers about your condition.
7        (ii) see medical records and approve who else can see
8    them.
9        (iii) give permission for medical tests, medicines,
10    surgery, or other treatments.
11        (iv) choose where you receive care and which physicians
12    and others provide it.
13        (v) decide to accept, withdraw, or decline treatments
14    designed to keep you alive if you are near death or not
15    likely to recover. You may choose to include guidelines
16    and/or restrictions to your agent's authority.
17        (vi) agree or decline to donate your organs or your
18    whole body if you have not already made this decision
19    yourself. This could include donation for transplant,
20    research, and/or education. You should let your agent know
21    whether you are registered as a donor in the First Person
22    Consent registry maintained by the Illinois Secretary of
23    State or whether you have agreed to donate your whole body
24    for medical research and/or education.
25        (vii) decide what to do with your remains after you
26    have died, if you have not already made plans.

 

 

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1        (viii) talk with your other loved ones to help come to
2    a decision (but your designated agent will have the final
3    say over your other loved ones).
4    Your agent is not automatically responsible for your health
5care expenses.
 
6
WHOM SHOULD I CHOOSE TO BE MY HEALTH CARE AGENT?
7    You can pick a family member, but you do not have to. Your
8agent will have the responsibility to make medical treatment
9decisions, even if other people close to you might urge a
10different decision. The selection of your agent should be done
11carefully, as he or she will have ultimate decision-making
12authority for your treatment decisions once you are no longer
13able to voice your preferences. Choose a family member, friend,
14or other person who:
15        (i) is at least 18 years old;
16        (ii) knows you well;
17        (iii) you trust to do what is best for you and is
18    willing to carry out your wishes, even if he or she may not
19    agree with your wishes;
20        (iv) would be comfortable talking with and questioning
21    your physicians and other health care providers;
22        (v) would not be too upset to carry out your wishes if
23    you became very sick; and
24        (vi) can be there for you when you need it and is
25    willing to accept this important role.
 

 

 

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1
WHAT IF MY AGENT IS NOT AVAILABLE OR IS
2
UNWILLING TO MAKE DECISIONS FOR ME?
3    If the person who is your first choice is unable to carry
4out this role, then the second agent you chose will make the
5decisions; if your second agent is not available, then the
6third agent you chose will make the decisions. The second and
7third agents are called your successor agents and they function
8as back-up agents to your first choice agent and may act only
9one at a time and in the order you list them.
 
10
WHAT WILL HAPPEN IF I DO NOT
11
CHOOSE A HEALTH CARE AGENT?
12    If you become unable to make your own health care decisions
13and have not named an agent in writing, your physician and
14other health care providers will ask a family member, friend,
15or guardian to make decisions for you. In Illinois, a law
16directs which of these individuals will be consulted. In that
17law, each of these individuals is called a "surrogate".
18    There are reasons why you may want to name an agent rather
19than rely on a surrogate:
20        (i) The person or people listed by this law may not be
21    who you would want to make decisions for you.
22        (ii) Some family members or friends might not be able
23    or willing to make decisions as you would want them to.
24        (iii) Family members and friends may disagree with one

 

 

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1    another about the best decisions.
2        (iv) Under some circumstances, a surrogate may not be
3    able to make the same kinds of decisions that an agent can
4    make.
 
5
WHAT IF THERE IS NO ONE AVAILABLE
6
WHOM I TRUST TO BE MY AGENT?
7    In this situation, it is especially important to talk to
8your physician and other health care providers and create
9written guidance about what you want or do not want, in case
10you are ever critically ill and cannot express your own wishes.
11You can complete a living will. You can also write your wishes
12down and/or discuss them with your physician or other health
13care provider and ask him or her to write it down in your
14chart. You might also want to use written or on-line resources
15to guide you through this process.
 
16
WHAT DO I DO WITH THIS FORM ONCE I COMPLETE IT?
17    Follow these instructions after you have completed the
18form:
19        (i) Sign the form in front of a witness. See the form
20    for a list of who can and cannot witness it.
21        (ii) Ask the witness to sign it, too.
22        (iii) There is no need to have the form notarized.
23        (iv) Give a copy to your agent and to each of your
24    successor agents.

 

 

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1        (v) Give another copy to your physician.
2        (vi) Take a copy with you when you go to the hospital.
3        (vii) Show it to your family and friends and others who
4    care for you.
 
5
WHAT IF I CHANGE MY MIND?
6    You may change your mind at any time. If you do, tell
7someone who is at least 18 years old that you have changed your
8mind, and/or destroy your document and any copies. If you wish,
9fill out a new form and make sure everyone you gave the old
10form to has a copy of the new one, including, but not limited
11to, your agents and your physicians.
 
12
WHAT IF I DO NOT WANT TO USE THIS FORM?
13    In the event you do not want to use the Illinois statutory
14form provided here, any document you complete must be executed
15by you, designate an agent who is over 18 years of age and not
16prohibited from serving as your agent, and state the agent's
17powers, but it need not be witnessed or conform in any other
18respect to the statutory health care power.
19    If you have questions about the use of any form, you may
20want to consult your physician, other health care provider,
21and/or an attorney.
 
22
MY POWER OF ATTORNEY FOR HEALTH CARE

 

 

 

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1THIS POWER OF ATTORNEY REVOKES ALL PREVIOUS POWERS OF ATTORNEY
2FOR HEALTH CARE. (You must sign this form and a witness must
3also sign it before it is valid)
 
4My name (Print your full name):..........
5My address:..................................................
 
6I WANT THE FOLLOWING PERSON TO BE MY HEALTH CARE AGENT
7(an agent is your personal representative under state and
8federal law):
9(Agent name).................
10(Agent address).............
11(Agent phone number).........................................
 
12(Please check box if applicable) .... If a guardian of my
13person is to be appointed, I nominate the agent acting under
14this power of attorney as guardian.
 
15SUCCESSOR HEALTH CARE AGENT(S) (optional):
16    If the agent I selected is unable or does not want to make
17health care decisions for me, then I request the person(s) I
18name below to be my successor health care agent(s). Only one
19person at a time can serve as my agent (add another page if you
20want to add more successor agent names):
21.............................................................
22(Successor agent #1 name, address and phone number)

 

 

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

 

 

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

 

 

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

 

 

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1possible so that your agent will have the authority to make any
2decision you could make to obtain or terminate any type of
3health care. If you wish to limit the scope of your agent's
4powers or prescribe special rules or limit the power to
5authorize autopsy or dispose of remains, you may do so
6specifically in this form.
7..................................
8..............................
 
9My signature:..................
10Today's date:................................................
 
11HAVE YOUR WITNESS AGREE TO WHAT IS WRITTEN BELOW, AND THEN
12COMPLETE THE SIGNATURE PORTION:
13    I am at least 18 years old. (check one of the options
14below):
15    .... I saw the principal sign this document, or
16    .... the principal told me that the signature or mark on
17    the principal signature line is his or hers.
18    I am not the agent or successor agent(s) named in this
19document. I am not related to the principal, the agent, or the
20successor agent(s) by blood, marriage, or adoption. I am not
21the principal's physician, advanced practice nurse, dentist,
22podiatric physician, optometrist, psychologist mental health
23service provider, or a relative of one of those individuals. I
24am not an owner or operator (or the relative of an owner or

 

 

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1operator) of the health care facility where the principal is a
2patient or resident.
3Witness printed name:............
4Witness address:..............
5Witness signature:...............
6Today's date:................................................
 
7SUCCESSOR HEALTH CARE AGENT(S) (optional):
8    If the agent I selected is unable or does not want to make
9health care decisions for me, then I request the person(s) I
10name below to be my successor health care agent(s). Only one
11person at a time can serve as my agent (add another page if you
12want to add more successor agent names):
13.............................................................
14(Successor agent #1 name, address and phone number)
15.............................................................
16(Successor agent #2 name, address and phone number)
 
17    (c) The statutory short form power of attorney for health
18care (the "statutory health care power") authorizes the agent
19to make any and all health care decisions on behalf of the
20principal which the principal could make if present and under
21no disability, subject to any limitations on the granted powers
22that appear on the face of the form, to be exercised in such
23manner as the agent deems consistent with the intent and
24desires of the principal. The agent will be under no duty to

 

 

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

 

 

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

 

 

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1    this paragraph (4) applies to any information governed by
2    the Health Insurance Portability and Accountability Act of
3    1996 ("HIPAA") and regulations thereunder. The agent
4    serves as the principal's personal representative, as that
5    term is defined under HIPAA and regulations thereunder.
6        (5) The agent is authorized: to direct that an autopsy
7    be made pursuant to Section 2 of "An Act in relation to
8    autopsy of dead bodies", approved August 13, 1965,
9    including all amendments; to make a disposition of any part
10    or all of the principal's body pursuant to the Illinois
11    Anatomical Gift Act, as now or hereafter amended; and to
12    direct the disposition of the principal's remains.
13        (6) At any time during which there is no executor or
14    administrator appointed for the principal's estate, the
15    agent is authorized to continue to pursue an application or
16    appeal for government benefits if those benefits were
17    applied for during the life of the principal.
18    (d) A physician may determine that the principal is unable
19to make health care decisions for himself or herself only if
20the principal lacks decisional capacity, as that term is
21defined in Section 10 of the Health Care Surrogate Act.
22    (e) If the principal names the agent as a guardian on the
23statutory short form, and if a court decides that the
24appointment of a guardian will serve the principal's best
25interests and welfare, the court shall appoint the agent to
26serve without bond or security.

 

 

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1(Source: P.A. 97-148, eff. 7-14-11; 98-1113, eff. 1-1-15.)
 
2    (755 ILCS 45/4-12)  (from Ch. 110 1/2, par. 804-12)
3    Sec. 4-12. Saving clause. This Act does not in any way
4invalidate any health care agency executed or any act of any
5agent done, or affect any claim, right or remedy that accrued,
6prior to September 22, 1987.
7    This amendatory Act of the 96th General Assembly does not
8in any way invalidate any health care agency executed or any
9act of any agent done, or affect any claim, right, or remedy
10that accrued, prior to the effective date of this amendatory
11Act of the 96th General Assembly.
12    This amendatory Act of the 98th General Assembly does not
13in any way invalidate any health care agency executed or any
14act of any agent done, or affect any claim, right, or remedy
15that accrued, prior to the effective date of this amendatory
16Act of the 98th General Assembly.
17    This amendatory Act of the 99th General Assembly does not
18in any way invalidate any health care agency executed or any
19act of any agent done, or affect any claim, right, or remedy
20that accrued, prior to the effective date of this amendatory
21Act of the 99th General Assembly.
22(Source: P.A. 98-1113, eff. 1-1-15.)
 
23    Section 99. Effective date. This Act takes effect January
241, 2016.".