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These are frequently asked questions about living wills and powers of attorney (health care powers of attorney and property powers of attorney), and general answers to those questions. The information given is intended to be used for informational purposes only, and is not intended to be a comprehensive answer to any one person’s specific situation. Answers to any specific problem may depend on particular facts at issue, and may change the answers found here.
What is an “advance directive”?
What is a “living will”?
What is a “health care power of attorney”?
What is the difference between a living will and a health care power of attorney?
What is a “property power of attorney”? (and, is a “property power of attorney” different from a “financial power of attorney”?)
Are advance directives (living wills, powers of attorney for health care, powers of attorney for property) valid in all 50 states?
What does a living will do?
Who can sign a living will?
Does a living will have to be witnessed? Notarized?
Should my doctor have a copy of my living will?
What happens if I am in a terminal condition and cannot express my wishes – and I don’t have a living will?
If I have a living will in Illinois, is the living will valid outside of Illinois?
Can I revoke my living will?
What is an “agent” in a health care power of attorney?
When does my agent’s authority “kick in”?
What authority does my agent have/not have?
Must my doctor(s) honor the instructions of my agent?
Can my agent over-rule my own decisions?
Who makes health care decisions for me if I am incapacitated, but have no power of attorney for health care?
When does the authority of my agent cease?
Can I have more than one agent?
Whom should I name as my agent?
What happens if my agent dies?
What happens if my agent tells me he/she doesn’t want to serve after all?
If I name my spouse as my agent, and we later get divorced, what happens?
Can I ever change my agent?
What are my options about specifying what kind of life sustaining treatment I want? (Do I have to pick one of the three on the standard form? Can I choose something different?)
When does the power of attorney go into effect?
When does the power of attorney terminate?
If I have a health care power of attorney in Illinois, is it valid outside of Illinois?
What is an “agent” in a property power of attorney?
When does my agent’s authority “kick in”?
What authority does my agent have/not have?
Must my bank/financial institution(s) honor the instructions of my agent?
Can my agent over-rule my own decisions?
When does the authority of my agent cease?
Can I have more than one agent?
Whom should I name as my agent?
What happens if my agent dies?
What happens if my agent tells me he/she doesn’t want to serve after all?
If I name my spouse as my agent, and we later get divorced, what happens?
Can I ever change my agent?
When does the power of attorney go into effect?
When does the power of attorney terminate?
If I have a power of attorney in Illinois, is it valid outside of Illinois?
Q: What is an “advance directive”?
A: An advance directive is a document you sign while you are healthy and of sound mind that tells your medical providers and/or your family and friends what health care and financial decisions you want to be made for you when you are no longer able to articulate your wishes for yourself. Common examples of advance directives include: living wills, health care powers of attorney, and property powers of attorney. The are called “advance directives” because they are “directives” that you make in “advance” of the time you will need them.
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Q: What is a “living will”?
A: A living will is a document which notifies your health care providers that you do not want any death-delaying procedures performed on you if you are deemed to have a terminal condition. The living will is effective in those circumstances if you cannot speak or otherwise communicate your wishes. It is important to know that in Illinois, a living will governs only death-delaying procedures when you have a terminal condition; a living will does not deal with any other health care issues – only whether your health care providers should use death-delaying procedures on you if you are terminal. For more information about living wills, please see the discussion under “Living Wills” below.
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Q: What is a “health care power of attorney”?
A: A health care power of attorney allows you to do any or all of the following: (1) name someone to serve as your agent to make health care decisions for you at any time that you are not able to make decisions for yourself – and this is true whether your condition is life-threatening or not, (2) name an additional person (or people) to serve as your successor agent(s) in case your primary agent cannot or will not serve, (3) dictate what health care procedures or treatment you do not want under any circumstances, (4) dictate whether or not you would like to donate organs, or which organs you may want to donate, (5) dictate what life-sustaining treatment you do or do not want, and (6) dictate who you want to be named as your guardian, should a guardian have to be appointed over you. Basically, a health care power of attorney is a broad and all-encompassing document that will insure that your wishes for your health care – whether your condition is terminal or not even that serious – are carried out when you are not able to articulate your own wishes for yourself. When you are able to articulate your own wishes for yourself, of course, you can do so – but the health care power of attorney protects your interests when and if you are not able to do so.
Sometimes the name for a health care power of attorney will be shortened to “health care POA” or “POA for health care” (“POA” being short for “power of attorney”).
For more information about health care powers of attorney, please see the discussion under “Health Care Powers of Attorney” below.
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Q: What is the difference between a living will and a health care power of attorney?
A: A living will deals with the following situation only: whether or not your health care providers should use death-delaying procedures on you if you are in a terminal situation and you cannot express your wishes for yourself. A health care power of attorney, however, deals with a much broader scope of situations (as noted above). You can have both a living will and a health care power of attorney, but they should be consistent. In Illinois, a health care power of attorney trumps a living will if they contradict each other.
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Q: What is a “property power of attorney”? (and, is a “property power of attorney” different from a “financial power of attorney”?)
A: Answering the second question first, “property power of attorney” and “financial power of attorney” are two names for the same thing – there’s no difference between the two. The term “property power of attorney” is more commonly used, but “financial power of attorney” is probably more descriptive. A property power of attorney is a directive whereby you appoint an agent to take care of your finances on your behalf should you be unable to do so yourself.
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Q: Are advance directives (living wills, powers of attorney for health care, powers of attorney for property) valid in all 50 states?
A: Advance directives are governed by state law, so each state has its own requirements. Most states have the same basic requirements, however, so your Illinois advance directive(s) would likely be valid and honored in another state. However, if you live part of the year in another state, it would be wise to consult with an attorney in that state about the validity of your Illinois advance directive(s) and whether you may need to execute a different advance directive that will comply with the requirements of that state. If you move to another state permanently, it is wise to destroy your Illinois advance directive(s) and execute new advance directive(s) that comply with the law of your new home state.
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Q: What does a living will do?
A: In Illinois, a living will has a very narrow application. It applies in the following circumstances only: when your condition is terminal, and you cannot express your own wishes for yourself, your living will directs your doctor not to give you any death-delaying treatment.
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Q: Who can sign a living will?
A: Anyone over the age of 18 (or emancipated minors) and of sound mind can execute a living will.
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Q: Does a living will have to be witnessed? Notarized?
A: In Illinois, a living will has to be signed and witnessed by two witnesses over the age of 18. The living will does not have to be notarized, but may be.
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Q: Should my doctor have a copy of my living will?
A: You should certainly discuss your living will with your doctor. Take your living will with you when you next visit your doctor. Your doctor will probably be happy to take a copy of it to keep in your medical file. For most people, it is a wise idea to have a copy of the living will in their medical file. The only real drawback to having the living will in your medical file is if, in the future, you wanted to revoke your living will, you would have to notify everyone who may have a copy of the living will to tell them that you are revoking it; ideally, they should give you back their copies of the living will so that you can destroy the copies. Chances are, however, that if you are executing a living will it is because you sincerely want the protections of a living will, and will not want to revoke it in the future. Therefore, for most people it is a wise idea to have a copy of the living will with their medical file.
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Q: What happens if I am in a terminal condition and cannot express my wishes – and I don’t have a living will?
A: If you do not have a living will, and your condition is terminal, and you cannot otherwise express your own wishes for yourself, your health care decisions are made by your next of kin. They may or may not agree on what to do, and you may or may not end up on life support. By way of example, Terri Schiavo did not have a living will – obviously, her family did not agree on what kind of treatment she should receive, and the long and protracted legal battle was the
result. Not every case is like hers, of course – in fact, hers was extraordinarily rare, but it serves as an example of something everyone would like to avoid.
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Q: If I have a living will in Illinois, is the living will valid outside of Illinois?
A: The answer, frankly, depends on the laws of the state (outside of Illinois) in question. This issue usually comes from two common circumstances: (1) individuals who live part of the year in another state and (2) individuals who have a medical emergency while on vacation or on a trip. For individuals who live part of the year in a state other than Illinois, it is prudent to consult with an attorney in that state to find out if your Illinois living will is valid in that state, or if you need a different living will; there may also be a question of which state is actually your primary residence. For individuals who are vacationing and suffer a medical emergency where a living will might be needed, the answer also depends on the law of the state in question. Probably the Illinois living will is going to be honored.
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Q: Can I revoke my living will?
A: Yes, you can revoke your living will at any time, as long as you are of sound mind. If you revoke your living will when you are not of sound mind (or someone alleges that you are not of sound mind, and subsequently proves it in court), your revocation may be deemed invalid. You can revoke your will by: tearing it up, shredding it, burning it, writing “revoked” (or “cancelled” or something to that effect) on it, or by writing to anyone with a copy of it to let them know that you are revoking your living will.
Q: What is an “agent” in a health care power of attorney?
A: An agent is someone you name to make health care decisions on your behalf if you are unable to make your own health care decisions. Your agent will act for you in making health care decisions.
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Q: When does my agent’s authority “kick in”?
A: You can specify this in your power of attorney. You can specify that your agent’s authority begins immediately when you sign the power of attorney, or you can specify that your agent’s authority begins when you are incapacitated and unable to make health care decisions for yourself. The advantage of the former is that your agent will be able to make important decisions (potentially life and death decisions) for you immediately upon your incapacity (since your agent had the power all along); the disadvantage is that you are trusting your agent to not misrepresent your incapacity and make decisions about your health care without your authorization.
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Q: What authority does my agent have/not have?
A: You can specify in your power of attorney what authority you want your agent to have. Or, more accurately, you can specify what limits you want to impose on your agent’s authority.
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Q: Must my doctor(s) honor the instructions of my agent?
A: If you are incapacitated, your doctor is authorized to accept the instructions of your agent as though they came directly from you. Therefore, if your doctor does not honor the instructions of your agent, it would be as though the doctor were not honoring your instructions. If your doctor were not to honor your agent’s instructions for your care, the consequences would frankly depend on the situation.
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Q: Can my agent over-rule my own decisions?
A: When you are incapacitated, your agent has complete authority to act for you (except for whatever limits you may have imposed in your power of attorney). However, to the extent that your power of attorney does not speak about certain situations or powers, your agent has complete authority. The point is that you should appoint only people you can absolutely trust as your agent(s). If your agent is abusing the power of attorney, a third party can petition the court to remove the agent from power (however, getting the court involved is exactly what the power of attorney is designed to avoid). Again: pick someone you can absolutely trust.
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Q: Who makes health care decisions for me if I am incapacitated, but have no power of attorney for health care?
A: Good question. The answer is your next of kin: your spouse (if you have one), your children, etc. It may end up being a matter of decision by committee. If your family can agree on what health care you need, or don’t need, then everything will work out; if they cannot agree, then conflict will inevitably arise. Let’s face it: health care decisions are difficult choices, especially when they involve life and death. The health care power of attorney is designed to appoint one person – your agent – to make decisions on your behalf in accordance with our wishes.
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Q: When does the authority of my agent cease?
A: You can specify in your power of attorney when you want your agent’s authority to cease. If you do not specify, the law says that your agent’s authority ceases upon your death.
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Q: Can I have more than one agent?
A: You may, but it is not a good idea to have “co-agents.” You should, however, have what is called a “successor agent.” A successor agent is someone you name as a “back up” in case your primary agent cannot serve. You can name as many successor agents as you like. Naming “co-agents” is, frankly, a bad. Your co-agents will have to agree on every decision, and the situation practically begs for conflict.
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Q: Whom should I name as my agent?
A: You should name someone you trust completely, since your agent will be making important health care decisions on your behalf – someone who shares your values and priorities, and someone who will abide by and honor your wishes. Ideally, you should name someone who lives in the same geographic area as you do, so that they can respond quickly in the event of emergency. Typically people appoint spouses, significant others, close family members, or close friends as agents. The only person you cannot appoint is your attending physician – the law prohibits your attending physician from serving as your agent.
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Q: What happens if my agent dies?
A: If your agent dies, your successor agent will take over. If you have no successor agent, your power of attorney will cease. If you are still of sound mind, you may execute a new power of attorney or you may amend your current power of attorney. If you are not of sound mind (i.e., you are incapacitated), your family will make decisions for you, and a court may have to appoint a guardian for you.
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Q: What happens if my agent tells me he/she doesn’t want to serve after all?
A: Your power of attorney allows your agent to decline to serve. Your agent should be honest with you and tell you if he or she does not plan to go ahead and serve. If you have a successor agent named in your power of attorney, he or she will serve instead. If you have no successor agent named, you will have to execute a new power or attorney or amend the one you have.
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Q: If I name my spouse as my agent, and we later get divorced, what happens?
A: Once the divorce becomes final, your ex-spouse is treated as though he or she had predeceased you, and will no longer be your agent.
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Q: Can I ever change my agent?
A: Yes, you can always change any aspect of your power of attorney. To do so, you will need to execute a new power of attorney or amend the one you have.
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Q: What are my options about specifying what kind of life sustaining treatment I want? (Do I have to pick one of the three on the standard form? Can I choose something different?)
A: The standard power of attorney form has three options concerning what life sustaining treatment you wish to have. Most people opt for one of the three – the three options on the standard form fairly cover the range of options, thereby giving direction to your agent of what your wishes are, without being overly specific as to cover every conceivable scenario. You do not, however, have to select any of the three options on the standard form. You may, in fact, write your own wishes regarding what life sustaining treatment you wish to have.
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Q: When does the power of attorney go into effect?
A: You can specify when you want your power of attorney to go into effect. You can choose to have the power of attorney become effective immediately when you sign it – this way it is ready in the case of an emergency. You can also choose to have it go into effect when you are incapacitated – your attending physician would have to diagnose you as incapacitated.
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Q: When does the power of attorney terminate?
A: You can specify in your power of attorney when you want your agent’s authority to cease. If you do not specify, the law says that your agent’s authority ceases upon your death.
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Q: If I have a health care power of attorney in Illinois, is it valid outside of Illinois?
A: The answer really depends on what the other state is and the circumstances. If you are an Illinois resident, but are simply visiting in another state, chances are that your power of attorney will be honored. If you are a former resident of Illinois, but now reside (either part time or full time) in another state, you should execute a power of attorney in the new state.
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Q: What is an “agent” in a property power of attorney?
A: An agent is someone you name to make financial decisions on your behalf if you are unable to do so yourself. Your agent will act for you in paying your bills and handling your financial affairs.
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Q: When does my agent’s authority “kick in”?
A: You can specify this in your power of attorney. You can specify that your agent’s authority begins immediately when you sign the power of attorney, or you can specify that your agent’s authority begins when you are incapacitated and unable to make decisions for yourself. The advantage of the former is that your agent will be able to make important decisions for you immediately upon your incapacity (since your agent had the power all along); the disadvantage is that you are trusting your agent to not misrepresent your incapacity and make decisions about your finances without your authorization.
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Q: What authority does my agent have/not have?
A: You can specify in your power of attorney what authority you want your agent to have. Or, more accurately, you can specify what limits you want to impose on your agent’s authority.
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Q: Must my bank/financial institution(s) honor the instructions of my agent?
A: If you are incapacitated, third parties are authorized to accept the instructions of your agent as though they came directly from you. Third parties (i.e., your bank or other financial institution) may be reluctant to honor the power of attorney and may require an additional affidavit from your agent, which they are allowed to do.
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Q: Can my agent over-rule my own decisions?
A: When you are incapacitated, your agent has complete authority to act for you (except for whatever limits you may have imposed in your power of attorney). However, to the extent that your power of attorney does not speak about certain situations or powers, your agent has complete authority. The point is that you should appoint only people you can absolutely trust as your agent(s). If your agent is abusing the power of attorney, a third party can petition the court to remove the agent from power (however, getting the court involved is exactly what the power of attorney is designed to avoid). Again: pick someone you can absolutely trust.
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Q: When does the authority of my agent cease?
A: You can specify in your power of attorney when you want your agent’s authority to cease. If you do not specify, the law says that your agent’s authority ceases upon your death.
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Q: Can I have more than one agent?
A: You may, but it is not a good idea to have “co-agents.” You should, however, have what is called a “successor agent.” A successor agent is someone you name as a “back up” in case your primary agent cannot serve. You can name as many successor agents as you like. Naming “co-agents” is, frankly, a bad. Your co-agents will have to agree on every decision, and the situation practically begs for conflict.
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Q: Whom should I name as my agent?
A: You should name someone you trust completely, since your agent will be making important decisions on your behalf – someone who shares your values and priorities, and someone who will abide by and honor your wishes. Ideally, you should name someone who lives in the same geographic area as you do, so that they can respond quickly in the event of emergency. Typically people appoint spouses, significant others, close family members, or close friends as agents.
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Q: What happens if my agent dies?
A: If your agent dies, your successor agent will take over. If you have no successor agent, your power of attorney will cease. If you are still of sound mind, you may execute a new power of attorney or you may amend your current power of attorney. If you are not of sound mind (i.e., you are incapacitated), your family will make decisions for you, and a court may have to appoint a guardian for you.
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Q: What happens if my agent tells me he/she doesn’t want to serve after all?
A: Your power of attorney allows your agent to decline to serve. Your agent should be honest with you and tell you if he or she does not plan to go ahead and serve. If you have a successor agent named in your power of attorney, he or she will serve instead. If you have no successor agent named, you will have to execute a new power or attorney or amend the one you have.
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Q: If I name my spouse as my agent, and we later get divorced, what happens?
A: Once the divorce becomes final, your ex-spouse is treated as though he or she had predeceased you, and will no longer be your agent.
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Q: Can I ever change my agent?
A: Yes, you can always change any aspect of your power of attorney. To do so, you will need to execute a new power of attorney or amend the one you have.
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Q: When does the power of attorney go into effect?
A: You can specify when you want your power of attorney to go into effect. You can choose to have the power of attorney become effective immediately when you sign it – this way it is ready in the case of an emergency. You can also choose to have it go into effect when you are incapacitated – your attending physician would have to diagnose you as incapacitated.
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Q: When does the power of attorney terminate?
A: You can specify in your power of attorney when you want your agent’s authority to cease. If you do not specify, the law says that your agent’s authority ceases upon your death.
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Q: If I have a power of attorney in Illinois, is it valid outside of Illinois?
A: The answer really depends on what the other state is and the circumstances. If you are an Illinois resident, but are simply visiting in another state, chances are that your power of attorney will be honored. If you are a former resident of Illinois, but now reside (either part time or full time) in another state, you should execute a power of attorney in the new state.
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