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Why Everyone Should Have a Healthcare Power of Attorney

By Patrick B. Mathis, shareholder

A durable power of attorney for healthcare, or “healthcare power of attorney” as it is frequently known, is a document whereby an individual (known as the “principal”) may designate another individual (known as an “agent”) to make healthcare decisions in the event of his or her disability.

The powers granted under an Illinois power of attorney for health care include the ability of the agent to make decisions regarding medical tests and treatment, surgical procedures, and other healthcare related questions. In addition, the Illinois statutory healthcare power of attorney allows the principal to provide guidance to the agent regarding life support options. For instance, the principal may indicate that it is his or her desire to be kept alive regardless of the costs or likelihood of recovery or, alternatively, to indicate that quality of life is the most important consideration and the agent should consider that directive in any decision regarding the principal’s healthcare or life support.

While a healthcare power of attorney may be established to take effect immediately upon signature by the principal, in most cases these powers of attorney do not become active until the principal is determined by his or her physician to be unable to make appropriate healthcare decisions on their own behalf. At that point, the agent’s authority springs up and remains in effect until recovery or death of the principal.

In our firm, we recommend that all estate planning clients adopt a healthcare power of attorney in conjunction with their overall estate planning attorney. While a will or living trust is designed to address post-death dispositions of property, for many individuals the administration of their property and decisions regarding their healthcare in the period prior to death are just as important. A healthcare power of attorney, coupled with a similar power of attorney for property, is critical elements in clients’ comprehensive planning for themselves and their estates.

Finally, while a healthcare power of attorney may give an agent the authority to direct physicians, hospitals and nursing care facilities in providing healthcare, we also suggest that clients discuss these issues with their families, particularly the designated agents, and that they share their thoughts in writing with family members. Children are often torn by the difficult decision to terminate life support for their parents. While their mother or father may have clearly wanted to have life support ended when there is no further quality of life available to them, the stress, anxiety and guilt associated with such choices, frequently coupled with the differences in opinion among family members, may make this decision extremely stressful. By openly discussing this issue with their agents, as well as other family members, individuals may make the decision much easier, and increase the likelihood that their agents will understand and follow their desires regarding healthcare and life support.

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