Health Care and Property Power of Attorney (POA)
At some point, you may need someone else to act or make decisions on your behalf. When this is the case, you can entrust someone else to handle your affairs regarding your health, property, and finances by granting them the legal authority to do so via a power of attorney (POA).
Rules and requirements of powers of attorney may vary state to state. Additionally, you may need to outline certain authorities or include specific language to grant the appropriate powers to your selected agent. You may want to have two different powers of attorney to address both health care and property decisions.
Because the process can get complicated, it’s recommended that you speak with an attorney who can advise you and prepare the documents for signature to ensure your best interests are protected.
If you or a loved one needs to bring a medical malpractice or nursing home negligence lawsuit against a facility, having your powers of attorney in order will streamline the process. In order to bring a lawsuit on someone else’s behalf, you need to have power of attorney for property for that person. Having a medical power of attorney as well can make the process easier.
You can obtain an Illinois power of attorney form online. These resources are particularly helpful in that they include details regarding what the POA covers and the requirements for completing the form.
The attorneys at Levin & Perconti are well-versed in powers of attorney, and can clarify any language you find confusing.
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Why Is a Power of Attorney Important?
A power of attorney (POA) is a binding legal document that provides reassurance when you need someone to protect your finances, real estate, health, end-of-life decisions, and other personal and business interests. In the event of abuse or malpractice, a POA of property is the person who can file a lawsuit on your behalf.
This conveyance of certain rights or authorities over your assets or person is voluntary. It provides you—the principal, the person creating the power of attorney and bestowing authority to someone else—with some discretion in decisions that are to be made for you, such as who will be making those decisions and the particular matters they can decide.
Creating a comprehensive power of attorney requires thought and planning. Once you’ve chosen your agent (the person who is allowed to act on your behalf), you can discuss your wishes with that person and other close family members who may succeed their appointment to ensure that your desires are met without in-fighting or confusion.
Convenience might be one reason to have a POA. Sometimes, a POA is necessary when you’re unable to act on your own behalf, either temporarily or permanently, due to age, disability, or injury. Without a POA, your family and those you trust may be left with little control over the care or resources you desire in any given circumstance without time-consuming court intervention.
You’re the only one who has the authority to establish a power of attorney for yourself. You must be of sound mind when signing off on the POA. If you never name someone as your power of attorney but end up needing one, the matter proceeds to court, and the court will appoint a guardian or conservator without your input. Your family cannot intervene with or influence this person’s decisions, so it’s best to have a plan already in place.
Limited, General, and Durable Powers of Attorney
The type of power of attorney you choose will govern your agent’s or agents’ authority over selected matters. Legally, your agent can only perform the acts specified or covered in your power of attorney. Any acts deemed necessary to carry out your wishes per the POA are also generally allowable. You can grant someone power over your finances, your health, or both. Additionally, you can establish a limited, general, or durable power of attorney.
A limited power of attorney gives your agent authority to carry out a singular or specific act. For example, if you are selling property in another state, you can create a power of attorney to delegate all tasks related to the sale to a trusted individual.
A general power of attorney lists various activities that the agent is authorized to handle. This document is less stringent than a limited power of attorney. The items your appointed agent has the power to perform must be included in the document for them to have sovereignty to carry out the acts.
Typically, once the principal becomes incapacitated, a power of attorney terminates. If you have a durable power of attorney, it remains effective even if you’re unable to make your own decisions. These POAs contain specific language stating that the agent’s authority survives the principal being declared incapacitated. Most powers of attorney are durable powers of attorney.
Agent Authority with a Power of Attorney for Property
A power of attorney for property, also called a financial power of attorney, authorizes an individual to make decisions or act on your behalf in financial, business, or property matters. Your agent will not only have powers to manage your day-to-day financial matters but might also have authority to implement your estate plan. You must include clear language in the power of attorney about how much authority you want your agent to have over the allocation or distribution of your assets.
Your agent might be authorized to make the following decisions regarding your money, finances, and property:
- Buy or sell real estate and other property on your behalf
- Control your bank accounts
- Pay your bills
- Sign contracts on your behalf
- Manage your retirement plans
- Handle any insurance or annuity policies
- Resolve tax issues
- Buy and sell stocks on your behalf
- Manage your business affairs
- Take out loans or borrow money in your name
- Control safe deposit boxes
- Acquire certain monetary benefits on your behalf (e.g., unemployment, Social Security, and military benefits)
- Handle your estate
- Sign legal documents on your behalf
The authority granted by this type of POA also gives your agent leave to hire a lawyer on your behalf to defend against or file a lawsuit. If you fall victim to nursing home abuse or neglect, your agent can ensure you have adequate legal representation to protect your rights.
A power of attorney for property does not substitute or override your will. The POA is only valid during your lifetime or until you become incapacitated, unless it’s a durable power of attorney. Even then, your agent must act within the bounds of your will. Additionally, a general power of attorney cannot authorize another person to vote in public elections on your behalf, perform services you were previously under contract for, act as a trustee or guardian in their place, sign a document attesting to your knowledge of certain facts, practice law on your behalf (without also being licensed appropriately to do so), or make or change your will.
Agent Authority with a Power of Attorney for Health Care
A power of attorney for health care can protect you in the event that you can no longer make decisions regarding your health and well-being. You can choose someone else to make some or all decisions concerning your health care, and you can even indicate in the document what decisions you want made for you, such as whether you want to remain on life support and for how long, if you want feeding tubes and to be administered food and water, or your end-of-life arrangements.
Decisions your agent might make for you regarding your health care needs include:
- Your general health care
- Specific medical treatment
- Medicines you do and don’t want to take
- Hospital, nursing home, or other short- or long-term care facility admissions
- Discharging you from any of the above facilities
- Controlling access to your medical records
- End-of-life decisions
- What to do with your body after death (e.g., authorizing an autopsy when the cause of death is uncertain, donating your body to science, cremating your body, etc.)
If you reside at a nursing home and suffer an injury that results in incapacitation while in the facility’s care, your agent, having certain authorities over your person and health-related matters as granted by the durable power of attorney for health care, can step in to hold the nursing home accountable for their abuse, neglect, or negligence. As long as your agent also has a POA for property, they may even file a lawsuit on your behalf.
Who Can Act as My Power of Attorney?
When deciding whether to appoint a power of attorney, one of the first things you’ll need to determine is who to appoint. Any competent person 18 years of age or older can act as your power of attorney or agent. As the principal, you’ll want to ensure that the person or persons you choose are reliable and trustworthy.
If you don’t know an individual who can make financial or property decisions for you, you can appoint certain financial institutions with trust powers to serve as your agent.
It is possible for you to choose more than one agent simultaneously to serve as your powers of attorney. The second agent may be asked to take over if the first agent is unable due to particular circumstances, such as death. There are pros and cons to this approach that would be best discussed with a lawyer. Most importantly, you’ll want to ensure that roles are clearly defined so that conflicts aren’t likely to arise.
When Does a Power of Attorney Go Into Effect?
A power of attorney can go into effect immediately, upon a set date, or only after a specific event occurs, such as your incapacitation or when health care or medical decisions need to be made for you because you’re unconscious or not of sound mind. The latter is known as a springing power of attorney. This type of power of attorney should contain clear language defining the meaning of a disability or incapacitation, allowing the agent’s authority to begin.
Also, a power of attorney may be limited or indefinite, based on the type of POA you choose, and the language contained within it. Unless you establish a durable power of attorney, your agent’s authority will cease on the date of your death or at such a time that you may become incapacitated. The durable power of attorney still loses its effect at the time of your death, during which time your will governs what happens. However, it can survive a declaration of your incompetency, thereby ensuring that someone will continue abiding by your wishes, even after you’re no longer able to assist in those decisions.
How Can Levin & Perconti Help My Power of Attorney File a Lawsuit?
If you’re trying to bring a lawsuit on someone else’s behalf, it’s important that you have a durable POA of both health care and property for that person. The financial POA allows you to bring the suit, and the health care POA allows you to obtain the injured party’s medical records, among other things.
Levin & Perconti is a leader in nursing home litigation matters. We are informed about the specific protections needed to safeguard residents’ interests. We have over 200+ years of combined legal experience, and our knowledge of federal and state nursing home laws and how those laws might apply to or impact your power of attorney is unmatched. We are highly respected and nationally recognized for our expertise. As a result, we’re well positioned to help with nursing home negligence and medical malpractice matters – even if you aren’t sure about your POA status.
Frequently Asked Questions (FAQs) About Powers of Attorney
Any time you’re entering into a legally binding contract, it can seem overwhelming. The nature of a power of attorney makes it that much more daunting, granting someone control over your personal, financial, and business interests. Doing so requires a significant amount of trust in the agent you’re appointing to manage your health care or property affairs.
Understandably, you likely have many questions and concerns as you consider a power of attorney. The answers to some of the frequently asked questions below are intended as general guidance. You should always discuss your specific needs with a trusted professional.
Q: Do I Need to Specify Certain Authorities to My POA?
Your agent cannot perform acts not covered in your power of attorney. The more comprehensive the document, the more acts your agent can undertake. Sometimes, broad language encompassing “all powers” for a specific purpose, such as managing your health care or property interests, may be sufficient. In other instances, authority is only given with express language. These instances might include the power to make gifts using your money, the power to designate beneficiaries on insurance policies, and more.
Various state laws also influence the type of language you will need to include in a POA. If certain state statutes cover various powers, granting your agent all authorities referenced under that statute, you may only need to include a statement about their authority to conduct all matters provided within that specific law.
Creating your power of attorney with the help of a knowledgeable attorney is the best way to ensure you’re protecting yourself and your agent accordingly. It will also help ensure the full extent of your wishes and that your agent will have the authority to carry out those wishes.
Q: How Is a Power of Attorney Executed?
You must be competent when entering into a power of attorney agreement, meaning you know the contents of what you are signing. Your agent must also be competent and aged 18 or older. All powers of attorney need to be witnessed when you and your agent provide signatures. Also, certain transactional powers that you’re entrusting to your agent will require your POA to be notarized and recorded per state law. Consult with an attorney to ensure the validity of your document based on its execution.
Q: Can I Still Act Independently With a Power of Attorney?
Yes, you still have the final say over your decisions for yourself and your property even with a power of attorney in place. Your agent can offer input, but you retain authority to override their decision. However, keep in mind, if your agent already acted independently, you cannot voice your conflicting wishes after an item has been sold or an irretrievable or irreversible decision has been made on your behalf. For this reason, you should appoint someone as your power of attorney only if you trust them and they’re aware of your interests and preferences.
One caveat is if you have a durable power of attorney, and your agent has declared that you’re mentally incapacitated or unable to act independently. If you disagree with their conclusion as to your mental capacity, it’ll be necessary for the agent to file a guardianship proceeding where a judge will determine your current mental status and ultimate authority over your future decisions.
Q: Can I Revoke a Power of Attorney?
Yes. You should provide written notice with your signature to your agent that you plan to revoke the power of attorney. This notice should also be provided to anyone who’s been handling your affairs with your agent by relying on the power of attorney. Your lawyer can help you take the correct steps to legally revoke the POA and notify the correct individuals.
Additionally, while a POA gives someone else the authority to act on your behalf, they are not obligated to serve. There’s an expectation that if they choose to perform the acts per the powers outlined in the POA, they will do so prudently. However, while they may have a moral duty to do so, they are not required to assume the powers allotted to them.
Is my power of attorney transferable from state to state? Your power of attorney remains in effect and must be honored even if you move to another state. However, it will be subject to the new state’s laws concerning powers of attorney, which might limit your agent’s authority to act on certain provisions of the document or in certain circumstances on your behalf. Additionally, your agent may experience delays when trying to effectuate certain acts if a third party requests that the POA be reviewed by an attorney within the new state to ensure it was properly executed (and thereby, not void) per your former state’s laws.
If you move to another state, it’s a good idea to speak with a lawyer about updating your power of attorney to reflect the new state’s laws and regulations.
Q: Does My Power of Attorney Expire at Some Point?
If you have a durable power of attorney, most states no longer require you to regularly renew the document for it to remain valid. Generally, it will continue to be effective until your date of death or if you decide to revoke it. However, it’s a good idea to meet with an attorney periodically to ensure the document still reflects the full extent of your current needs and wishes. Also, your lawyer can advise you about any state law changes that might affect your existing power of attorney.
If your POA contains a termination date, you will need to create a new power of attorney upon the passing of that date if you desire for your agent’s authority to continue, or if you want to assign a new agent to handle certain health care or property-related matters on your behalf.
Q: Will the Court Govern My Power of Attorney?
Typically, a power of attorney is created to avoid lengthy court proceedings regarding your affairs. Therefore, your agent is given authority by the POA to act without court supervision. However, a court can be called upon to consider certain issues when conflicts arise. You, your agent, or other interested parties can request a hearing to interpret or modify certain provisions of the POA, determine a third party’s obligation to honor any part of the POA, order your agent to provide an accounting, or have an agent removed.
Not only were they so professional but also so caring and thoughtful. It was very difficult going over the facts in our mother's case but they were so compassionate and understanding and allowed us to be with them every step of the way. We were able to sit in on the depositions and we were really able to see how hard they worked on our behalf.