The Most Important Document You Likely Haven’t Signed: Illinois Power of Attorney for Healthcare

As of June 16, 2020, approximately 40% of diagnosed COVID-19 cases in the City of Chicago have occurred in people under the age of 40.While a Power of Attorney for Healthcare (POA) is typically included in a more comprehensive estate plan along with a Power of Attorney for Property, Will and/or Trust, many people under the age of 40 do not have a comprehensive estate plan, and therefore do not have a Power of Attorney for Healthcare.People who do not have children are even less likely to have a POA and estate plan set up than their contemporaries with children .Due to concerns about who will care for their children in the event of death or incapacity, people with children are more likely to have signed a POA in conjunction with designating a guardian and signing a Will providing for their children. Unless someone has completed a comprehensive estate plan or been tasked with making medical decisions for a sick friend or family member, they often do not prioritize completion of estate planning.For some, completion of an estate plan and POA is a scary prospect as it forces them think about their eventual mortality.For others, they assume the process will be overly complex and that the value of their assets do not justify the need for an estate plan.However, pushing off completion of a full estate plan often means that a POA is not in place, and when an unexpected medical crisis occurs, there is no designated agent to make health care decisions for you.

A POA allows someone else to make health care decisions for you when you are unable to make them for yourself.Unlike a Will, which does not become effective until death, a POA is effective while you are still alive, but unable to make decisions for yourself. In Illinois, you can use a POA to designate an agent who you trust to make healthcare decisions for you when you cannot make them for yourself based on your individual values and wishes.Your agent has to be over 18 years old, however, there are no other legal restrictions on who you can appoint as your agent.It should be someone you trust to carry out your wishes, even if they do not agree with your wishes and someone who will not be too upset to carry out your wishes if you are very ill.Your agent should also be willing to accept this role.While you are not required to inform your agent that you have signed a POA appointing them as your agent, it is often helpful to discuss your wishes with your agent so they are prepared in the event they unexpectedly, or suddenly, need to start acting as your agent and start making healthcare decisions for you.

Your designated health care agent will have decision-making authority once the POA is effective, either immediately or when your health care provider determines you can no longer make decisions for yourself. Unless specific limitations are put in place, your agent will be authorized to speak with physicians about your condition, will have access to your medical records and be able to authorize medical tests, surgery and treatments for you.The agent will also be able to decide where you receive medical care.If you are near death, your agent will have the authority to decide whether to accept, withdraw or decline treatments if you are unlikely to recover.While you can makes your wishes known my making selections in your POA to guide your agent, your agent has the final say over these decisions once your physician determines you can no longer make decisions for yourself.

While the goal is for your agent to make decisions in line with the decisions you would have made for yourself, ultimately the agent is free to make their own decisions regarding treatment and lifesaving intervention.It is important to discuss your wishes with your agent.If your preference is for lifesaving treatment, no matter the cost, or the chances of a recovery, it is important that your agent is informed of your preferences.While conversations surrounding lifesaving treatment can often be unpleasant and difficult, it is important to appoint an agent who will openly listen to your preferences and make decisions for you in line with the decisions you would have made for yourself.Many times, it is easier to have these discussions well in advance of when the POA will actually be utilized rather than under the stress of a pending surgery or diagnosis.

If you do not have POA and designated agent for health care decisions, health care providers may ask a family member, friend, or guardian to make decisions for you and act as your “surrogate.”The surrogate may not be who you would have chosen to make your decisions and may not have any information on your preferences regarding treatment and life saving measures.They may make decisions based on their own wishes, rather than based on your wishes and preferences.Additionally, with no designated agent, multiple family members may be involved in the decision-making process who may disagree on a course of treatment or measures to be taken.

The emergence of COVID-19 has highlighted the number of people who do not have a POA in place and have not designated a health care agent, particularly in the under 40 age range.Suddenly, there is a large group of patients who are incapacitated and on ventilators with no designated agent to make decisions regarding their care and treatment.Medical Providers are then tasked with finding a surrogate to make decisions for them.Often, if the patient is unmarried and does not have adult children, a parent is tasked with being the surrogate.Not only is this an extremely emotional task for a parent to complete for their child, but the patient and surrogate have likely not discussed life saving treatment and the patients preferences and wishes, putting everyone in a difficult situation and making a stressful situation even more stressful.

While signing a POA and completing an estate plan is not always the most “fun” task for people, and often brings about difficult and emotional decisions, most people agree that after it is done, they feel tremendous relief knowing it is completed.Most will agree that the process is much more painless than they expected it to be and are reassured to know that they have taken the steps to protect their wishes should an unexpected tragedy occur.