Articles Tagged with Powers of Attorney

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During the COVID-19 pandemic, many of us in Illinois are complying with the governor’s stay-at-home order. We are hunkered down in our homes – making only necessary trips for essential matters such as medical treatment, supplies, or perhaps taking a walk to breathe in in some fresh air and soak in some sunshine while maintaining social distancing. We thank and applaud everyone who is doing their part in curbing the spread of this virus.

At this time, some of you may reflect on the “what ifs” of the future. What will happen if you become incapacitated, or worse, if you pass? What if your child has special needs and you wish to preserve assets for the benefit of your child? What if you have minor children? How or who will take care of them and assets for their benefit should you be unable to care for them, or worse, die? Are you able to make or coordinate health care and financial decisions for your spouse, parent or other elder loved one?

Illinois law provides defaults for distributions through probate court proceedings if you were to pass away and a legal process (namely, guardianship) should you become incapacitated. Depending on Illinois law could involve what could be costly court proceedings. Ultimately, the result of the Illinois laws may not reflect your wishes as to the disposition of your assets and/or who will be in charge. A properly executed estate plan sets out your wishes and names the trusted persons you want in charge of your affairs during life and afterward. Estate plan documents can and often include wills, powers of attorney, living wills, and trust documents – such as living trusts, special needs trusts, or asset protection trusts.

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Our firm is always stressing the need for Healthcare Powers of Attorney and Living Wills which are examples of healthcare directives.   Remember, that the Healthcare Power of Attorney is a document that names an agent to make healthcare decisions for you should you lack capacity to make those choices.  It not only pertains to decisions concerning life sustaining treatment if death is imminent, but also pertains to those situations where death is not imminent.

By contrast, the Living Will is a document which is restricted to those situations when death is imminent.  It is basically a written pronouncement by you that you do not want life sustaining measures taken if those procedures only delay the dying process. Unlike the Power of Attorney for Healthcare, an agent is not appointed and the health provider must continue to administer food and water.

But what if you have neither  a Power of Attorney for Healthcare nor a Living Will, your death is imminent and you lack the capacity to make medical treatment and life sustaining decisions? This is when the Illinois Healthcare Surrogate Act will apply. The Act generally allows for family members, friends, guardians and other named persons to make these type of decisions.

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