The Evolution of the Power of Attorney

  Over the past 20 years, state legislatures have considered and made many changes to the laws governing power of attorney agents, says Quin R. Frazer, a partner with the Chicago Law firm Gardner, Carton and Douglas.

  "Before 20 years ago, there was really no distinction between property powers and medical posers," Frazer says. Back then, the two kinds of power of attorney were:

• General Power of Attorney, The agent can do everything the principal can do with no limitations
• Limited Power or Attorney, The agen's authority is limited to areas spelled out in the agreement.

  "Then hospitals started getting nervous about their potential liability with health care decisions, even if they followed the direction of the spouse or the children," Frazer says. "So people started putting specific directions about medical decisions in their power of attorney documents."

  At that time, hospitals often took the position that they weren't protected by even the most specific power of attorney documents because there were no legal precedents or statutes. "That impelled various consumer groups that were interested in people's health care and right to die to lobby heavily to get special legislation for health care powers," Frazer says.

  Today, most states distinguish between power of attorney for health care and for property. The same person can be a power of attorney agent of both health care and property. However, that dual role must be explicityly documented.

  Also in many states, agents for health care have a durable power of attorney, meaning that if the principal becomes mentally incompetent, the agent still has the authority to act on behalf of the principal. That is a change of recent years. Previously, if the principal became incompetent, the agent lost his or her authority.

  However, when the principal dies, the authority of the power of attorney agent also ceases, with one exception, Frazer says. The power of attorney agent can decide certain issues about the deceased principal, such as whether body parts could be donated or if an autopsy should be performed on the body.