Illinois Power of Attorney Medical, Property, & Mental Health for Disabled Adults

Walking Through the Process

Step 1- Understanding Decision-Making Alternative Options

Decision-making alternatives are only necessary after the individual turns 18 years old. Once the individual is 18 years and older, they will be responsible for making their own decisions regarding health, education, finances, etc. and professionals, like doctors, police, and bank personnel, must honor the individual’s voice.  Information can no longer be freely shared with others after the individual turns 18 as it would violate privacy laws, such as HIPPA.  

When considering a decision-making alternative, it is important that the individual and their family understand all options and make the choice that is best for them.  

In order from least to most restrictive for the individual:

1. No Action

2. Supported Decision Making

3. Power of Attorney

4. Partial Guardianship

5. Plenary (Full) Guardianship

Option 1, No Action, is just that.  Since no decision-making action needs to be taken until after the individual turns 18 years old, as they are considered a Minor up until age 18, if the individual desires to keep their adult rights after they turn 18 years old then they legally have that option.  No Action means that life as the individual knows it continues and they are considered an adult by the government and are held to the same legal standards as any other adult.  No Action is the least restrictive option because the individual maintains all their rights.  

Option 2, Supported Decision Making, is another least restrictive option because even with a formal agreement for support from others, the individual maintains all their rights. 

Option 3, Power of Attorney, is a moderately restrictive option because some of the individual’s rights are transferred to another person and all other rights are maintained.    

Options 4-5, Partial/Limited Guardianship and Plenary Guardianship, are the most restrictive alternative and it is wise to fully understand all options before moving forward with any option.   It is important to note that individuals who have a legal guardian granted through a guardianship proceeding would have legal authority, making Power of Attorney forms null.  

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Back to Option 3, Power of Attorney.

There are three different types of power of attorney- health care, property, and mental health treatment.   All three forms can be found HERE (scroll to Advance Directives). 

Power of Attorney for Health Care may be referred to as Healthcare Power of Attorney or Medical Power of Attorney, and Power of Attorney for Property may be referred to as Financial Power of Attorney or Financial POA. 

These forms are short, anywhere between 6-10 pages, and use language that is easy for most to understand. It is important that the individual signing a power of attorney form to give another person their decision-making power have the cognitive capacity to understand how signing the form transfers their legal rights to someone else.  The individual must understand what they are signing for the forms to be legal and valid.   

Considered ‘advance directive’ forms, power of attorney forms allow the individual to take the lead in determining who would oversee decision-making power.  The forms can be prepared in advance, or they can be completed and implemented immediately.   It may be wise to discuss with the individual who would be the best people to sign their rights to, should the need arise, by highlighting people who have shown to work in their best interests and in good faith prior to the need for formal paperwork. 

Step 2- Choosing Forms & Agents/Attorney-in-Fact

Each form that the individual desires to implement should be read in its entirety and questions regarding use of the form are legal in nature and should be directed to an attorney.    An overview of each type of POA is reviewed below.  

Health Care:

In summary, the Statutory Short Form for Power of Attorney for Health Care allows the individual to name someone who can talk with physicians, choose where they will receive medical care and which physicians can provide medical treatment, see medical records and approve sharing of those records, give permission for medical tests, treatments, surgery, and medicines, make decisions regarding treatment to keep the individual alive, decide how to proceed with organ donation, make decisions regarding the individual’s body after death, and communicate with other family and loved ones to make the best medical decisions for the individual.  

This form uses the term ‘health care agent’ to describe the person the individual would give their health care decision-making rights to.   ‘Successor agents’ are people who would be next in line to make health care decisions if the first health care agent isn’t available. 

The individual specifies how and when the health care agent’s responsibilities come into play.  The individual can choose to transfer rights when they are no longer able to make their own decisions or immediately.  

The individual also indicates their preference regarding their life wishes.  The individual will indicate they want quality over a long life or staying medically alive no matter how unwell they are according to medical standards. 

There is space to identify the timeline for revocation.  The individual will have a 30-day grace period after indicating they want to revoke (or cancel) the power of attorney, or it can take effect immediately.  

Lastly, a witness must sign and date the power of attorney.  The witness must not be related to the individual or a medical professional.      

Property:

In summary, the Statutory Short Form for Power of Attorney Property allows the individual to name someone who can make decisions regarding property and financial affairs.  

Throughout the form are sections labeled with (NOTE: Here you will note…)-type text and this is to aid in understanding and completing the form based on the individual’s wishes.  

This form uses the term ‘agent’ to describe the person the individual would give their financial matters and property decision-making rights to.    ‘Successor agents’ are people who would be next in line to make those decisions if the first agent isn’t available. 

The individual will initial the 2nd page and then name their designated agent and their address on the next page.  The agent will have power over all 15 financial/property categories listed on page 3 (see below), unless the individual strikes through any of the items. The individual can identify limits to the above 15 financial/property categories, as well as additions by listing those in narrative form.  

1. Real estate transactions

2. Financial institution transactions

3. Stock and bond transactions

4. Tangible personal property transactions

5. Safe deposit box transactions

6.  Insurance and annuity transactions

7. Retirement plan transactions

8. Social Security, employment and military service benefits

9. Tax matters

10. Claims and litigation

11. Commodity and option transactions

12. Business operations

13. Borrowing transactions

14. Estate transactions

15. All other property transactions 

The individual can give their agent the power to access other professionals to assist them in making informed decisions. If they would prefer not to, the instructions in the Note indicate the individual should strike through item 4. 

The agent can request reimbursement, or the individual can note that they are not eligible for reimbursement of expenses related to their duties. 

The individual can choose a start date and/or termination (end) date.  If neither section is completed, it is assumed the power of attorney will go into effect when it is signed and remain in place until the individual initiates a revoke (cancel) or dies.  

The individual can name successor agents.   The successor agent would serve as the agent in the event that the first named agent becomes incompetent, revokes, resigns, or dies and is no longer able to serve as the individual’s power of attorney.  

If the individual would like to name the person they listed as their agent as a guardian of their estate they can.  If they would prefer not to, the instructions in the Note indicate the individual should strike through item 9. 

Next, there is space for the individual to confirm they understand the power of attorney form by signing and dating.   This power of attorney form is required to be notarized by a notary public and have a witness of signature.   Therefore, it may be necessary to wait to sign until both are present.   There is space for a second witness, if one is present, however it is not required for the power of attorney to be valid.   After the second witness section is space for the official notary.    As outlined in the leading paragraph, there are specific guidelines about who cannot be a witness.  The list of who cannot serve as a witness should be reviewed to ensure the chosen witness does not fall into one of the listed categories.   

Next is lines for specimen signatures which are used as a reference against future signatures to confirm validity.  The last few sections are the responsibilities and expectations of the agents.  The must and must-not duties of an agent are outlined clearly in this section.  

Mental Health Treatment:

In summary, the Declaration for Mental Health Treatment allows the individual to identify their wishes for treatment and can name someone who can make decisions regarding their mental health treatment if they become incapable.  

The form begins by highlighting the importance of the form, as well as indicates how the individual would be considered ‘incapable’ and how an attorney-in-fact should proceed.  

This form uses the term ‘attorney-in-fact’ to describe the person the individual would give their mental health treatment decision-making rights to.   ‘Successor attorney-in-fact’ are people who would be next in line to make those decisions if the first agent isn’t available. 

This form is intended to be completed while the individual is of sound mind and the first section explains what this means.   There is space to outline the individual’s mental health symptoms which may make them incapable of making sound-mind decisions.  

In the next three sections the individual will express their wishes regarding psychotropic medications, electroconvulsive therapy, and admission to and retention in a mental health facility.  

Next, the individual will name an attorney-in-fact who they would want to make decisions on their behalf if/when they are considered incapable. There is also space to identify a successor attorney-in-fact.  The next space allows the person identified as an attorney-in-fact and successor attorney-in-fact to accept the appointment of this role.  

The individual can also name a specific physician to serve as one of the two physicians who would determine if they are incapable of making their own mental health decisions.  

Next, there is space for additional instructions or conditions to be noted by the individual.  

Next, the individual and witnesses sign and date.   Two witnesses are needed to make this form valid.  Both witnesses must observe the individual signing the document and believe the individual is capable at the time they sign.   As outlined in the leading paragraph, there are specific guidelines about who cannot be a witness.  The list of who cannot serve as a witness should be reviewed to ensure the chosen witnesses do not fall into one of the listed categories.  

There is space to identify that all or part of the power of attorney is being revoked (cancelled).  The individual can revoke the whole form or list the sections being revoked.   There is space for a physician’s signature to serve as confirmation the individual is capable of making this decision. 

Step 3- Draft & Disseminate

After printing the appropriate form(s) and the people serving as agent(s)/attorney-in-fact have been identified, the power of attorney document should be completed by the individual.  

While written in simple, low-level language, the power of attorney forms may contain words or phrases that an individual may need support understanding.  Someone the individual trusts and who is familiar with their goals and desires can assist the individual in completing the form to reflect what they want.  

The form will likely take less than 15 minutes to complete but allow additional time to read and review before signing.

The completed form(s) should be shared with relevant professionals, such as a health care provider, who would need to know about the transfer of specific rights.   Individuals and agents may consider carrying copies (paper or electronic format) with them for reference if a need suddenly arises.  

A copy of the form(s) can also be shared with the identified agent(s)/attorney-in-fact so the details of their commitment are clear and available for quick reference.  It is a good idea to have completed forms available in paper form or scanned and shared digitally.  If using an iPhone, completed papers can be easily scanned using the Notes app and shared as a PDF.   A how-to video can be found HERE.  

Step 4- Follow-Up

As with any document which supports a living person, the identified agent, successor, or attorney-in-fact may need to be periodically updated.   

If the individual wants to end the decision-making power of an agent, successor, or attorney-in-fact, they can.  They simply notify the agent, successor, or attorney-in-fact that they would like to end their formal commitment and draft a new power of attorney and sign on a new agent, successor, or attorney-in-fact.    In addition, the decision-making power of an agent, successor, or attorney-in-fact may be terminated if there is abuse or neglect against the individual.  

Terminating a power of attorney can be done by a written statement indicating the power of attorney form be nullified, signing in front of a notary, and sharing with identified agents and relevant professionals. A revoked power of attorney would result in the rights returning to the individual.  

If the individual’s decision-making needs increase and more restrictive options are pursued, like guardianship, then the guardianship would overpower the power of attorney.