What Happens If I Do Not Have a Power of Attorney?
There are two types of powers of attorney in Illinois, a power of attorney for healthcare and a power of attorney for property. These are both legal documents that can and should be drafted in advance of needing them. They are easy documents to put in place, but many people fail to do so, often with frustrating and expensive consequences.
Differences Between the Powers of Attorney
What are the differences between the two powers of attorney? A power of attorney for healthcare is used to grant another person authority to make healthcare decisions for you under certain conditions. The power of attorney can be immediate, meaning the person you name can start making healthcare decisions for you immediately, or it can be springing, meaning the person you name cannot make decisions for you unless you are determined to be unable to make the decisions yourself by your attending physician.
A power of attorney for property is authority granted to another person over your finances. Your fiduciary can make financial decisions for you, including paying your bills, signing contracts, selling your home, etc. A power of attorney for property can be either immediate or springing as well.
What Happens If I Do Not Have a Power of Attorney for Healthcare?
If you do not have a power of attorney for healthcare in place and you end up being unable to make healthcare decisions, then decision making falls under the Illinois Health Care Surrogate Act. The act provides a hierarchy for decision making when the need arises, without the need for a formal legal proceeding.
What Happens If I Do Not Have a Power of Attorney for Property?
If you do not have a power of attorney for property in place and up end up being unable to make financial decisions, there is no statute in place like the Illinois Health Care Surrogate Act to grant another financial decision-making authority without a legal proceeding. In such a case, guardianship will be necessary.
What is Guardianship?
Guardianship is a legal proceeding instituted on behalf of an alleged disabled person, usually someone lacking capacity to make decisions. See our post on Guardianship here. Guardianship can be for healthcare purposes (guardian of the person) or financial purposes (guardian of the estate). It is important to note that a guardianship petition is made to a Court. It is a legal proceeding wherein the individual who is allegedly disabled can object to guardianship and ask for a trial. Even if the Court determines that guardianship is necessary, the Court will require annual accountings and reports for the life of the individual. This process is definitely not preferable to having powers of attorney in place. If you have powers of attorney in place, your family members can forego guardianship and begin acting on your behalf if you are determined disabled, thus saving time, effort, and money.
Will My Loved One Be Able to Act as My Guardian?
In the event of your incapacity, your loved ones will step forward and petition the Court to be your Guardian. The individual petitioning the Court to be your Guardian will be scrutinized by the Court to make sure that they are a good candidate for Guardian. A person you may have chosen to act on your behalf if you had capacity will not necessarily be approved by the Court to be your Guardian. So, if you want to ensure that your choice gets to act, then it is crucial to create powers of attorney immediately so that if the scenario of your incapacity arises, it will not be an issue.
Call the Lake County Estate Planning Attorneys at Johnston Tomei Lenczycki & Goldberg LLC Today to Create Your Powers of Attorney
It is extremely important to have powers of attorney for healthcare and property drafted in advance and on file in case of your incapacity. The estate planning attorneys at Johnston Tomei Lenczycki & Goldberg LLC will meet with you and create your powers of attorney with your chosen people listed to act on your behalf. Call us today at (847) 596-7494 to get your power of attorney for healthcare and power of attorney for property.
Phone Number: (847) 549-0600
Fax Number: (847) 589-2263
350 N. Milwaukee Ave., Ste. 202
Libertyville, IL 60048
223 N. IL. Rt. 21, Ste. 14
Gurnee, Illinois 60031