Planning for Incapacity: Why You Need Powers of Attorney

Although it’s a difficult subject to think about, planning for incapacity is one of the most important estate planning matters you should address. Statistically speaking, at age 30, you are almost twice as likely to become injured or incapacitated as you are to die. This risk of incapacity grows with age — nearly doubling by the time you reach the age of 50. In light of these statistics, it is more important than ever to ensure that you, and your assets, will be appropriately managed in the event that you become incapacitated. One of the best ways to illustrate the importance of planning for incapacity is to examine what will happen if you don’t.

Under Illinois law, there are two primary documents used to plan for incapacity: (1) the Power of Attorney for Property (POAP), which names an agent to manage your financial matters, including paying bills, managing accounts, and related issues; and (2) the Power of Attorney for Health Care (POAH), which names an agent to make decisions concerning your health care, including decisions about life support and other life-sustaining measures. In the event that you become incapacitated without these powers of attorney in place, it can be extraordinarily difficult for your loved ones to manage your affairs. Even worse, the people who end up making these decisions for you may not be the ones you would want to do so.

So, what happens if you become incapacitated without a POAP in place? First and foremost, it will be difficult for your loved ones to manage your financial affairs. Banks, financial institutions, and even hospital billing departments typically will not provide information or take instruction from your friends or family members in the absence of a POAP. Instead, your loved ones would most likely be forced to seek court-ordered guardianship over you. To obtain guardianship, your friend or family member would have to hire an attorney and file a petition for guardianship in the probate court. Not surprisingly, these court proceedings can be complex, lengthy, and costly. Costs for these court proceedings would be paid out of your assets, which would reduce the amount of money available for your regular expenses and care. Worse still, the court may even name a guardian that you would never have chosen for yourself.

The results would be similar in the case of your health care decisions if you become incapacitated without a valid POAH in place. In emergency situations, Illinois law provides for a scheme of statutory priority of individuals who can make your health care decisions in the absence of a POAH; however, those individuals may not be the ones you would want to handle your medical care. Specifically, the Illinois Health Care Surrogate Act provides that decisions concerning medical treatment on behalf of a patient who lacks decisional capacity can be made by the patient’s “surrogate,” in the following order of priority:

(1) The patient’s court-appointed Guardian of the Person;

(2) The patient’s spouse;

(3) The adult son or daughter of the patient;

(4) Either parent of the patient;

(5) Any adult brother or sister of the patient;

(6) Any adult grandchild of the patient;

(7) A close friend of the patient; or

(8) The patient’s court-appointed Guardian of the Estate.

To avoid these problematic and potentially costly results, you can take simple steps today to protect yourself in the future. We at Lavelle Law can assist you with the simple but vitally important process of preparing a POAH and a POAP. If you haven’t already done so, call us today. If you would like to contact me directly, I can be reached at (847) 705-7555 or hgwalser@lavellelaw.com.