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Mental Health Matters
The newsletter of the ISBA’s Mental Health Law Section

May 2015, vol. 1, no. 3

The 2015 Health Care Power of Attorney Act and Form: Mental health perspective deficiencies

In 2014 the Illinois legislature enacted legislation with a new Health Care Power of Attorney (HPOA) form. The legislation can be found at 755 ILCS 45/4 et seq. It appears that the legislation was intended to make it easier for persons to execute this form with untrained personnel at medical facilities.

The first provision of the statutory form allows the agent to “accept, withdraw, or decline treatment for any physical or mental condition of mine, including life-and-death decisions”. The delegation is extremely broad, but the form itself does not provide parameters for consideration by the agent.

There is a statement further in the form for general instructions. However, much of the instructions only apply if the person is unconscious and does not address incapacity caused by mental illness or dementia.

The form does not mention a Mental Health Treatment Preference Declaration, so estate planners should add a provision to the statutory form concerning mental health treatment. The form or statute should have provided that a Mental Health Treatment Preference Declaration has preference over an HPOA. The form or statute should also provide that the HPOA agent will have all of the authority for administering psychotropic medication and ECT possible under 405 ILCS 5/2-102(a-5).

The new HPOA Act allows for placement in a mental health facility. However, in the real world a mental health facility will probably not allow placement of an objecting principal since the principal could leave by revoking the HPOA. The standard for revocation of an HPOA is far lower than the specific standards under a Mental Health Treatment Preference Declaration.

The most objectionable flaw in the HPOA act is allowing the agent to have “complete access to my medical and mental health records, and sharing them with others as needed, including after I die”. This broad directive includes full mental health records, possibly including therapist notes in limited circumstances. The directive would also allow access to other restricted categories under HIPAA.

For mental health records, there are no restrictions on whom the person can pass along the records to, i.e., it emasculates protections under the Mental Health Confidentiality Act. Accordingly, estate planning practitioners should make material changes to this provision.

The new form, with the exception of the overbroad provisions concerning medical and mental health records and disclosure, is better than having no health care power of attorney in effect. However, clients would be better served by a form prepared by an estate planner.

The HPOA Act with form can be found at 755 ILCS 45/4 et seq. <http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=075500450HArt%2E+IV&ActID=2113&ChapterID=60&SeqStart=2600000&SeqEnd=-1>.

The Illinois Statutory Short Form Power of Attorney for Health Care also can be downloaded from: <http://www.isba.org/resources/poaforms>.

The author prepared a modified Power of Attorney for Health Care form and Declaration for Mental Health Treatment. ■

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Daniel G. Deneen, is in private practice with Deneen and Deneen, 202 S. Eldorado Rd., Suite A1, Bloomington, IL 61704 Phone: (309) 663-0555. Email: dandeneen@ilaw202.com