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April 2015Volume 103Number 4Page 20

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Estate Planning / Elder Law

Estate Planners Adopt and Adapt the New HCPOA Form

Illinois has a new, plain-language statutory health care power of attorney, and lawyers are getting used to it - and, in some cases, tweaking it to suit their practices.

Health care attorneys in Illinois saw the need for a simpler, more user-friendly statutory form for clients to declare who would hold their health care power of attorney and how that person should proceed. Elder law attorneys objected to what they saw as "dumbed down," vague, or simplistic language that might leave the elderly vulnerable to the unscrupulous.

artwork for articleThe Illinois legislature unanimously passed a bill to change the statutory form. The bill was originally drafted by the Illinois State Medical Society (ISMS) with input from the ISBA and other groups. It became Pub. Act 98-1113 and took effect January 1, 2015. And now, estate planning attorneys have begun to put it into place, with some caveats and wrinkles that they are finding useful in honing the new language to ensure that it serves their clients well.

"The essential goal of the document was to find something that was a bit more user-friendly" for health care providers, patients, and their health care agents, says Keith Emmons, partner with Meyer Capel in Champaign, who helped to vet the law as a member of both the state bar's health care section council and the standing committee on legislation. "The sense was that the then-current version was a bit too legalistic."

Health care providers found the former form confusing and resisted the legalistic nature of it, Emmons says, so the original drafters at ISMS brought the language down from a college reading level to more like junior high. "The general feeling was, 'It's not working as well as intended. Let's make it easier to understand the options and the instructions to the health care agent. Then, let's make it easier for providers to implement, since it's the patient's wishes that are being implemented,'" he says.

'[B]etter than we had before'

Thus far, Emmons believes the new statutory form has represented an improvement, both in the eyes of health care attorneys and estate planners. "They feel the new document hits the mark better for their clientele," he says. And for those who disagree, "in truth, this didn't abrogate any of the [forms] that were in existence. If you have the old form in place, and you have a health care agent, it should work the same.…You have some leeway or flexibility in the type of form you use."

Most changes that the ISBA's trusts and estates committee suggested were incorporated into the bill, although some were not, and some attorneys are displeased with it, says Gary Gehlbach of Dixon-based Ehrmann, Gehlbach, Badger, Lee & Considine, a trusts and estates committee member.

"I think it's a lot better than what we had before," says Gehlbach, who has given clients the option of using the old or new form, and "in every case, they have thought the new form was more readable and easier to understand. The reading level for the old one, in some parts, was '14th grade,' which was part of the impetus for the Illinois State Medical Society to say, 'We need something people can understand a little better.'

"It's important because it's easier for clients to absorb, to consider the issues," he adds. "It's not as complicated. The criticisms are that choosing the language for what a client would want in an end-of-life situation, especially, has been dumbed down, that it's too simplistic."

Estate planners did not drive the adoption of the new form, says Timothy Midura of Huck Bouma PC in Wheaton. "My sense of it is that the health care people kind of said, 'We need a really dumbed down form that people can use without ever even thinking of going to a lawyer,'" he says.

Having said that, Midura acknowledges, "In the end, I think it works. That's the point of a simpler form. No forms are perfect. But most lawyers when they go through it, they kind of blink, and go, 'Do I really want my name attached to this form?'"

The FAQ approach

Elder law attorneys gave the law "significant push back," Emmons acknowledges. "[They] took the position, generally, that there was risk in doing this because physicians would take advantage of the elderly in some way or another," he says. "They were strongly opposed."

But estate planners have gained a comfort level. One said to him, "The more legalistic it is, the more comfortable the lawyers feel; but the more straightforward, the more lay language [it uses], the easier it is to implement. And the lawyers don't implement it, that's the patient and the doctors." Emmons adds, "Lawyers are concerned about dotting 'i's and crossing 't's and making sure there are no unintended consequences. That's the dissonance you hear on these things."

When the statutory language is formatted into a useable legal document, it is typically six pages long. The first 3½ pages are a conversational frequently-asked-questions (FAQ) guide that Emmons likens to the types of questions asked in popular tax software programs that walk a user through the process. "I think it's an excellent way for the layperson to look at the document and make choices," he says. "You ultimately end up making the choices anyway, but the predicate information explaining what choices you have to make was the biggest improvement."

The notion of an FAQ section had bubbled up from estate attorneys' methodologies in the past, Emmons says. "In talking with our estate planners, they had done a workaround for the old form, in which they had created their own memorandum of frequently asked questions that they used," he says.

The FAQ section starts with a subsection on what the client wants his or her agent to know, such as whether they would want to live as long as possible or avoid prolonged suffering, whether they would rather be at home or in the hospital at the end of their life, and whether they wish to make a significant contribution to medical science at their death.

The guide also discusses what kinds of decisions the health care agent can make, like whether to accept, withdraw, or decline treatments if the patient is unlikely to recover, and what to do with your remains if you have not made plans. There are guidelines on whom to choose as a health care agent, what happens if the agent is unavailable or unwilling to make decisions, and what happens if the patient has not chosen an agent and if there is no one whom they trust to fill that role.

Creating custom versions

Some attorneys have begun to tweak the statutory form to suit their own practices, and Midura believes that's what the architects of the form intended. "They left an open invitation for lawyers to draft their own forms," he says. "There's nothing in the statute that says you have to use this form. If you're smarter than the form, go ahead."

But you might want to be careful what you wish for, Midura adds. "At that point, the dilemma is, 'Well, yeah, but are you truly smart enough, as an estate planning lawyer, to draft a form that's health care oriented. That's a big piece of meat to chew on, and digest, vs. to say, 'Can I ever be faulted for using this dumbed-down, simple statutory language. At the end of the day, this is what the legislature says is community practice.' A lot of lawyers will settle on that."

He adds, "I've struggled through, from the standpoint of, 'Oh, gee, is there any pride of authorship I can layer on top of it?' At the end of the day, as long as the health care providers accept it, it's fine."

Similarly, Gehlbach says he and others have stuck pretty close to the script laid out in the statutory form. "A lot of us have customized the form while substantially sticking with the form," he says. Both he and Midura have done some tinkering.

Revocation of previous forms. For example, the new statutory form states upfront that "this power of attorney revokes all previous powers of attorneys for health care," which raises a potential problem. "What if someone fills it out, and they winter in Florida, and they have a Florida surrogate," Midura says. "This arguably revokes every other agency. I basically ask the client, if they have other health care powers of attorney out there, don't revoke those." So he clarifies that only previous Illinois powers of attorney for health care are revoked.

Successor agents. The new statutory form doesn't ask for successor agents to be named until the very end - after everyone's signatures, Midura says. "It's literally a paste-on, you paste or tape somebody's name but there are no authenticating signatures," he says. So in his altered form, he has moved the naming of successor agents to right after the primary power of attorney agent is named.

The statutory form segues into talking about successor agents by saying, "If the agent I selected is unable or does not want to make health care decisions for me," which raises another issue in Midura's mind: What if the first agent is simply unavailable at the moment they are contacted?

"Hypothetically, they're in the shower and can't answer the phone call from the hospital - does the hospital feel they are unable to act, or do they just need to wait [before turning to the successor]?" he says. "What does 'unable' or 'does not want to act' mean? That's the simpler language" coming into play. "Do they roll to the successor agent because the first agent is unavailable?" To address this potential issue, practitioners might want to add language specifying when the successor agent should be contacted.

When the agent's power kicks in. In the section that spells out what the agent is authorized to do and when, the statutory form lists two options: (1) to make decisions only when the patient is unable to do so as determined by the physician, or (2) to make them starting immediately unless the patient still wants to make his or her own decisions. Gehlbach has added a third option, under which even if the agent is not authorized to make decisions at the outset, he or she has the right to see the patient's medical records and talk with the physician about whether the patient still has decision-making capacity.

"It's my preference to have them let the agent be decisional from the beginning, if they completely trust that person," he says. "Most clients are comfortable with that. It's usually a close family member. But there are, certainly, instances in which the person lists an agent they're not really comfortable with, in which case [the power of attorney] ought not be effective unless the person is no longer decisional."

Quality - and sanctity - of life. In the section about patient's wishes on whether to prioritize quality of life or prolonging life as much as possible, the language in the statutory form regarding the former reads: "If I am unconscious and my attending physician believes, in accordance with reasonable medical standards, that I will not wake up or recover my ability to think, communicate with my family and friends, and experience my surroundings, I do not want treatment to prolong my life or delay my death…."

That raises another issue in Midura's mind. "Now we're inserting the attending physician's opinion," he says, whereas "the previous form basically said, 'If the agent believes….' Again, on the simplified form, I look at that as more of a directive. If the physician believes this [about the patient's prognosis], then the agent has less discretion."

But since the statutory form makes this selection optional, attorneys are free to advise clients simply not to choose one of the options on the statutory form and thereby retain a higher level of discretion for the agent. If the client wishes to direct the agent in a way that differs from the two options provided, a lawyer could always draft a new provision or perhaps attach and incorporate a more specific medical directive as an exhibit to the power of attorney.

Gehlbach has added a third option to the quality-of-life vs. staying-alive check boxes, which essentially restates the Catholic Church's position on the sanctity of life. "Many of my clients are Roman Catholic, and years ago we added the church's position on end-of-life" to the form they used, he says.

"If the client chooses that one, we attach it and ask the client to sign that provision. The difference, as I understand it in talking with priests and others, is that it explicitly states quality of life is not to be a factor, but stated much more eloquently. Few of my Catholic clients opt for that choice, but I always want to make it available."

Just to cover his bases, Gehlbach makes explicit reference on his tweaked version of the form that the document is to be construed as relating to the underlying health care power of attorney statute. "I don't think that's essential, but personally, I think it's a good idea," he says. "I also have added what I call specific preferences for other issues, such as whether the client would want to be cremated, whether the client would want the agent to consent to an autopsy, and various choices for anatomical gifting."

Witnesses. More than anything else, Midura is troubled by the fact that the form only lists five statements that witnesses must agree to before signing the form: (1) at least 18 years of age; (2) they are not the successor agent named in the document; (3) they are not related to the principal, agent, or successor agent; (4) they are not the principal's physician or mental health service provider, or related to one of those individuals; and (5) they are not an owner or operator, or relative of such person, of the patient's health care facility.

But, Midura says, the actual statute lists various other requirements. For example, the principal's dentist and optometrist cannot be a witness, but the form does not specifically mention those individuals, and he figures the average person is not going to consider them as their "physician" because they're so far removed from life and death issues. Another example the form does not mention is that board members or executive officers of the health care facility cannot serve as agents.

"The form has all kinds of holes in it," he says. "Arguably, somebody can read the statutory form and still not be authorized to sign as a witness because they don't meet the statutory requirements. Why didn't they list all of them on the form? Because the other requirements are more complicated. They made it more simple, but in that context, somebody could be signing the form [as a witness] and not be authorized under the statute."

Simplicity v. specificity

Of course, the compromise between simplicity and specificity is ongoing in the law, particularly when consumer clients are involved. And, as with most compromise, the results won't make everyone happy. Some lawyers will use the form as written, while others will make it their own - with their clients' bests interests in mind.

Ed Finkel is an Evanston-based freelance writer.

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Member Comments (2)

The new form basically throws out all patient records protections under HIPPA and the Mental Health Confidentiality Act. It also specifies unconsciousness as when it takes effect; what about dementia?
It's better than no POA, but has some big problems.

One purpose of the original "legalistic" language was to acquire in emergencies the most prompt healthcare provider compliance possible eliminating as much ambiguity and uncertainty about the Agent's powers as it could. See: " Illinois Power of Attorney Act" by James N. Zartrman at 13 S. Ill. U. L J 1 (1988) Making the language less "user-friendly" to emergency healthcare providers is the price of making it more friendly to everyone else. Resulting delay in getting emergency healthcare provider compliance with Agents' directions can be another price to be paid in emergency rooms.