Last week, a potential client called me with an issue that arises fairly often. He and his spouse will be taking a “trip of a lifetime” for a couple of weeks, but will leave their minor children at home in the care of relatives.
The question he asked was: How do you allow the relative to handle medical emergencies that may arise with minor children? There are a few options:
- Short-term guardian appointment. Section 5/11-5.4 of the Illinois Probate Act allows a parent to "appoint in writing, without court approval, a short term guardian of an unmarried minor or a child likely to be born." The written instrument has to be signed by the parent and at least two credible witnesses. The nice thing about this option is that you can set the actual term of guardianship (like, say, two weeks).
- Power of attorney for health care. Section 4-3 of the Illinois Power of Attorney Act states that the "health care powers that may be delegated to an agent include...all powers a parent may have to control or consent to health care for a minor child." The Illinois statutory form for power of attorney doesn't mention health care for minor children, so inserting specific language in the form may be necessary.
After answering his question, I asked if he had made sure that his health care needs would be properly taken care of. I explained that the Power of Attorney for Health Care is a document that permits you to delegate another person (agent) the power to make health care decisions for you if you are unable to do so for yourself. By doing this, you are able to appoint as your agent someone who you are confident will carry out your wishes.
I then asked, “Who will talk to the health care provider if you cannot?” In the health care power of attorney, you can inform your agent of your preferences regarding issues that are important to you, such as the right to accept or refuse any medical treatment, pain management or life support. In order to make informed decisions, your agent has the same rights and access to your medical records as you do and should be adequately informed about your medical condition, treatment alternatives and the possible consequences.
The health care power not only assures that your wishes are carried out, it protects each health care provider and any other person who acts in good faith on any direction or decision by your agent (that is not clearly contrary to the terms of the health care power). It is as if you had given direction for the health care provider yourself.
The gentleman asked, “Who should be my agent?” That depends on who is most qualified to carry out your wishes. Neither your attending physician nor any other health care provider may act as your agent. Some characteristics you should consider are:
- Good communication skills, to communicate your wishes and gain information from busy health care professionals
- Leadership abilities within the family, who could if necessary, unify the family and instill confidence
- Time to devote to the task
- Some medical background, if possible
- Geographic proximity.
If the appointed agent cannot act, you can and should name successor agents. They should be listed in the order you wish them to serve. Your agent does not have to act, but if the agent does act, they must do so diligently.
Can I change my agent? Yes, you can revoke the health care power at any time, either orally or in writing. If you wish to amend the health care power, you must do so in writing.
How long does the agency extend? The health care power is for your lifetime. The agency can continue beyond the principal’s death to allow for organ donation, autopsy or disposition of remains.
We were able to get the proper documents in place before the man and his spouse left the country, and fortunately, they did not have a need to use them during their trip. Make sure you have your documents in place before you travel this year. iBi
