Legal Requirements for Creating a Medical Power of Attorney: A Comprehensive Guide

Power of attorney (POA) is something that many people have questions about; in fact, it’s one of the most widely searched terms in estate planning. There are several different types of powers of attorney, and each is designed for a different purpose – but the one that most people need is the medical power of attorney.

A medical power of attorney is a legal document that grants authority to another person, known as the agent, to make healthcare decisions on behalf of the principal, or the person who created the document. Having a medical power of attorney is crucial as it ensures that your healthcare preferences are adhered to in the event that you’re unable to make decisions for yourself.

In a medical power of attorney, the principal can designate the agent to make decisions about various aspects of healthcare, including medical treatments, surgical procedures, and even end-of-life care. The agent’s role is to act as a trusted advocate for the principal, making decisions that align with their wishes and values. This document becomes effective only when the principal is unable to make decisions due to incapacity, such as in the case of a serious illness or injury.

Legal Requirements and Formalities for Creating a Medical Power of Attorney

To create a valid medical power of attorney in Illinois, certain legal requirements must be met. The document must be in writing and signed by the principal in the presence of a witness. The principal must also have the mental capacity to understand the document and the authority they’re granting.

The document does not need to be notarized, but this is a step that you can take.

Additionally, it is important to consider the specific legal requirements and formalities of creating a medical power of attorney in your jurisdiction. Laws regarding powers of attorney can vary from state to state or country to country. Consulting with a lawyer who focuses on estate planning and healthcare law is essential to ensure that your medical power of attorney complies with all applicable legal requirements.

At Diamond Estate Planning, our attorneys will listen to your needs, answer your questions, and help you create the documents that best fit your goals.

Types of Power of Attorney and Choosing the Right One

There are different types of power of attorney, each serving different purposes.

A general power of attorney grants broad authority to the agent, allowing them to handle a wide range of matters on behalf of the principal. This type of power of attorney can be useful in situations where the principal wants to grant the agent authority over various aspects of their life, not just healthcare.

On the other hand, a limited power of attorney grants specific authority for a particular purpose or time period. This type of power of attorney is often used when the principal wants to grant the agent authority for a specific healthcare decision or a specific period, such as during a surgery or while the principal is traveling.

A durable medical power of attorney will grant the agent the ability to make more and broader decisions, even in the case that the principal (you) are mentally incapacitated. This might happen if you are unconscious or in a coma for an extended period of time or if you experience dementia or Alzheimer’s. 

Choosing the right type of power of attorney depends on your specific circumstances and requirements. Consider the level of authority you want to grant to the agent and the specific areas of healthcare decision-making you want them to be involved in. It is important to carefully consider the powers you include in the document to ensure that it aligns with your wishes and provides sufficient guidance to the agent. 

For example, if you have a chronic condition and want to ensure that your agent has the authority to make ongoing healthcare decisions on your behalf, a durable power of attorney would be appropriate. This would ensure that the agent’s authority remains effective even if you become incapacitated.

This is another reason to work with an experienced estate planning attorney. Your attorney can inform you of your options, answer your questions, and ultimately design a plan that is in line with your goals. As your needs change, your attorney can also update your documents accordingly.

Choosing a Healthcare Agent

Selecting an agent for a medical power of attorney warrants careful consideration. The agent must be at least 18 years old and not have any disqualifying factors, such as being convicted of a felony or being declared mentally incompetent. Financial institutions with trust powers may also serve as agents. The agent should be someone you trust to respect your healthcare decisions and act in your best interests.

When choosing a healthcare agent, it is important to consider their availability and willingness to take on the responsibility. The agent should be someone who is easily reachable and able to make informed decisions on your behalf. It is also crucial to have open and honest conversations with your potential agent about your healthcare preferences and values to ensure that they are comfortable advocating for your wishes.

For example, if you have specific religious or cultural beliefs that may impact your healthcare decisions, it is important to choose an agent who understands and respects those beliefs. Additionally, if you have a close family member or friend who has a medical background or experience in the healthcare field, they may be a suitable choice as they may have a better understanding of medical procedures and terminology.

Steps to Create a Medical Power of Attorney

Creating a medical power of attorney involves several steps. 

• Begin by consulting a lawyer to ensure all legal requirements are met. 
• The document should include key details like the agent’s name, the powers granted, and the duration of authority. 
• Sign the document in front of a witness. 
• Afterward, keep the original document in a safe place and provide copies to relevant parties. 

At Diamond Estate Planning, we provide you with a binder that includes all of your relevant documents so that if your agent needs to take action, everything is all in one place, ready to grab and go.

In addition to these steps, it is important to communicate your healthcare preferences and decisions to your agent and other relevant individuals, such as your healthcare providers. This ensures that everyone involved is aware of your wishes and can act accordingly when the medical power of attorney comes into effect.

For example, if you have specific medical treatments that you would like to refuse or alternative treatments that you prefer, it is essential to communicate these preferences clearly in the medical power of attorney document. This will provide guidance to your agent and healthcare providers when making decisions on your behalf.

Role and Responsibilities of an Agent Under a Medical Power of Attorney

The agent under a medical power of attorney is the recipient of the power and is authorized to make decisions on behalf of the principal. 

The agent has fiduciary responsibilities, which means that they must act in the principal’s best interests

The agent cannot delegate their responsibilities.

The role of the agent is to advocate for the principal’s healthcare preferences and make decisions that align with their wishes and values. This includes consulting with healthcare providers, reviewing medical records, and making informed decisions based on the information available.

For example, if the principal has specified in the medical power of attorney that they do not wish to receive life-sustaining treatment if they are in a persistent vegetative state, the agent must respect this decision and communicate it to healthcare providers when necessary. The agent should also be prepared to make difficult decisions in accordance with the principal’s wishes, even if they may be emotionally challenging.

Revoking or Terminating a Medical Power of Attorney

A power of attorney can be revoked in writing by the principal. Notice should be served to the agent and other parties who may rely on the power. Certain events, such as death, revocation, or completion of the power’s purpose, automatically end the authority of an agent or the power of attorney.

To revoke a medical power of attorney, the principal must follow the legal requirements specified in their jurisdiction (if this is needed, your Diamond Estate Planning attorney can assist you). This typically involves creating a written document stating the revocation and providing a copy to the agent and any relevant parties.

It is important to keep in mind that revoking a medical power of attorney does not automatically reinstate the principal’s decision-making capacity. If the principal wishes to regain control over their healthcare decisions, they may need to consult with a healthcare provider or legal professional to explore other options.

For example, if the principal’s condition improves and they regain the ability to make their own healthcare decisions, they may want to revoke the medical power of attorney to resume control over their healthcare choices. In such cases, it is important to follow the legal requirements for revocation to ensure that the agent’s authority is properly terminated.

Protecting Your Family and Your Health

While not everyone will go through the same situations, things can happen unexpectedly – and if they do, you can protect yourself and your family by having a medical power of attorney and other relevant documents in place. 

The process is fairly easy – it starts with a free consult to determine your needs and create a game plan. Give us a call today to schedule time with one of our attorneys and gain the peace of mind knowing that your health and your family are protected.

DISCLAIMER: Any information contained herein is solely for informational purposes and is only applicable in the state of Illinois.  While it is important that you educate yourself, nothing herein should be construed as legal advice or create an attorney-client relationship. For specific questions, we urge you to contact a local attorney for advice pertaining to your specific legal needs.