A car accident, a stroke, or other sudden illness can leave any adult unable to manage money or make medical decisions. Many people assume a spouse or adult child can step in, but that’s not how Illinois law works. Without the right documents, your family may face delays, disputes, or even a court proceeding during this stressful period.
An experienced estate planning attorney can provide the documents needed to keep decision making in the hands of the people you choose. That way, a temporary situation does not create chaos for months to come.
Why and How to Plan for Incapacity
The consequences of not having advance directives that govern your finances and healthcare decisions can include loss of your lease, loss of business income, and delays in important medical care. The following are the basic documents that attorneys recommend to avoid expensive and time-consuming gaps:
1. Power of Attorney for Property
The Illinois Power of Attorney Act provides you the right to appoint an agent to handle financial and property matters throughout the principal’s lifetime, including periods of disability. Banks and other third parties must honor this surrogate’s authority to pay bills, manage accounts, file taxes, and deal with real estate on your behalf.
Power of attorney in Illinois is durable by default, meaning it survives any period of incapacity unless the document says otherwise. An alternative is a “springing” power that takes effect only upon incapacity, but financial institutions often require proof of incapacity, which can cause delays during a crisis.
2. Power of Attorney for Health Care
Medical decision-making is a separate document for Illinois residents. A health care power of attorney names an agent to make medical decisions including choosing providers, consenting to treatment, and accessing medical records. Unless the document specifies a time limit it remains in effect from signing until death but it can be canceled by the principal at any time. The agent named cannot be your doctor or another health care provider, and it must be witnessed by someone who is not your agent.
3. Living Will and Other Advance Directives
Four types of advance directives are recognized in Illinois:
- health care power of attorney
- living will
- mental health treatment preference declaration
- Practitioner Orders for Life-Sustaining Treatment (POLST)
The living will only applies if you have a terminal condition and addresses whether death-delaying procedures should be used. A POLST form, signed by you and your provider, records your wishes about CPR and other life-sustaining treatment, and is generally used by people with serious illness. The mental health declaration states preferences about psychiatric treatment in advance.
What Happens Without These Documents
If you are incapacitated and do not have any of these directives in place, the Illinois Health Care Surrogate Act directs medical providers to identify a decision maker for you. They consider those who know you, including your guardian, spouse, adult children, parents, adult siblings, and close friends. The surrogate named has limited power and cannot direct withdrawing life support unless two doctors certify that you lack decision making capacity and have a qualifying condition, such as a terminal illness.
Without the documents, your finances remain in limbo, because nobody can take authority over accounts that are in your name only. If an appropriate surrogate cannot be found, a court-appointed guardian may control your affairs.
Put the Plan in Place Before You Need It
Incapacity planning is inexpensive compared to the guardianship proceeding it prevents, but documents must be witnessed and signed properly, often in front of a notary, while you have legal capacity. Once a crisis arrives, it’s too late. An experienced estate planning attorney at Legacy & Life Law Firm can prepare Illinois-compliant powers of attorney and advance directives tailored to your wishes as well as review existing documents to ensure they still reflect your desires. Call for a consultation.