POWERS OF ATTORNEY
A power of attorney can also provide for someone to manage a person’s property and the payment of his bills during disability.
In a power of attorney, you name an agent (an “attorney-in-fact”) and you give that agent certain powers to act on your behalf.
Some powers of attorney are limited in scope. A general power of attorney gives the agent broad power to manage your property and pay your bills. It may even empower the agent to make gifts on your behalf, to transfer your property to a living trust or to consent to medical or surgical procedures on your behalf, if these powers are specified in the instrument. A power of attorney that deals with real estate must be acknowledged before a notary public.
In a long illness, a general power of attorney doesn’t work as smoothly as a living trust. For this reason, many lawyers recommend living trusts for clients who are ill or elderly, and use the power of attorney for clients who are younger and healthy, as “insurance” against an unexpected contingency. The power of attorney may also be used to supplement a living trust.
Illinois has adopted a durable power of attorney law. This Act allows the appointment of an agent and successor agent who can act for you. The power can be conditioned upon the principal’s incapacity. These powers survive the disability of the principal.
There are two types of statutory powers: PROPERTY and HEALTH CARE.
A property power allows a principal to appoint an agent who can act for him or her in whatever matters are delegated. It can be as broad or narrow as the principal requires. Also matters such as successor agents, guardianship, and compensation can be specified.
A health care power allows the appointment of an agent to make health care decisions on your behalf. Illinois law allows adults the right to accept or refuse medical treatment as they see fit. A health care power allows the delegation of this right to an agent. The health care power allows specification of medical treatment desired, appointment of successor agents, and nomination of a guardian of your person. The powers survive the disability of the principal. Your health care power of attorney should be consistent with any preferences you may express in a living will (see below).
A WORD OF CAUTION. A power of attorney may allow the agent to do anything that a principal could do. You should not provide anyone with a power of attorney unless you place the utmost trust and confidence in that person.
Death automatically cancels powers of attorney, so this device is no substitute for a Will.
Many people also execute a Living Will Declaration. This is a statement given directly to your doctor that makes clear one’s wishes as to how he or she would want to be treated when death is imminent. Unlike the health care power of attorney that also may discuss end of life decisions, the Living Will Declaration does not involve a 3rd party decision maker. The statement is given directly to the doctor, as if the patient were able to communicate his or her wishes. The Living Will Declaration is not followed unless agents named in the health care power of attorney are not available. Because the language of these two documents may not be identical, it is important that care be taken to make sure that one’s wishes are accurately described in both documents.
No matter what your age is or the current state of your health, a personal tragedy could strike at any time. You could be severely injured in a car accident, for example, and kept alive solely by feeding tubes, respirators, or other means of modern technology without ever regaining consciousness.
With a Power of Attorney for Health Care, you would have already named a person whom you trust to make health care decisions for you in a circumstance such as this one. In legal terms, this person is called your “agent.” If you become incapacitated, your Power of Attorney may give your agent the power to consent to or withdraw medical treatment, request medical care on your behalf, or admit you to a hospital or other institution.
Even if you plan to have a friend or a member of your family serve as your agent, you must name one of them in writing as your agent; the law does not automatically grant family members or friends these broad powers. Your agent will have the power to make final health care decisions for you, including continuing or stopping your medical treatment in accordance with your wishes.
If you do not sign a Power of Attorney for Health Care, Living Will, or Declaration for Mental Health Treatment, the Health Care Surrogate Act may allow a certain person or persons to make medical and life sustaining treatment decisions without court involvement. This person is called a surrogate. Under the surrogate decision-making process, your physician will identify a surrogate in the order listed below:
1. a court appointed guardian of your person
2. your spouse
3. your adult children
4. your parents
5. your adult brothers or sisters
6. your adult grandchildren
7. one of your close friends
8. a court appointed guardian of your
Before the surrogate decision-making process
can be used, two requirements must be satisfied:
1. A physician must determine and record
in your medical record that you lack decisionmaking
2. You must not have an applicable Power of
Attorney for Health Care, Living Will, or Declaration
for Mental Health Treatment.
Your surrogate may not forgo life-sustaining
treatment unless two physicians agree that you
lack decision-making capacity and have at least
one of the following:
• a terminal condition;
• an incurable or irreversible
• permanent unconsciousness.
The law calls any one of these three conditions
a “qualifying condition.”
A surrogate may not make decisions concerning
admission to a mental health facility
or mental health treatment including psychotropic
medication or electroconvulsive therapy.
These decisions must be made with court involvement.
A surrogate, however, may petition
a court to order any of these forms of care.
Even though you can rely on a surrogate, you
should still consider naming an agent under a
Power of Attorney for Health Care. First, your
agent can do everything a surrogate can do and
much more. Second, with an agent, you reduce
the risk that your wishes will not be carried out
because the agent will be following your written
directions. Third, you may prefer someone
other than the surrogate to make these important
decisions for you. Fourth, you could end up
with adult children or several brothers and sisters
as surrogates who may disagree. You can
reduce the risk of disagreements between them
or court challenges by naming your own agent.
Lageotakes Law Firm
Thomas Lageotakes, Attorney & CPA
1699 E Woodfield Rd Suite 400
Schaumburg, IL 60173
111 E Jefferson Ave
Naperville, IL 60540
Chicago office by appointment only: Coming soon
WESTFIELD, IN, 46074
Phone: 224 324-4400
Phone: 630 753-8035 630 753-8035
From our office in Schaumburg and Naperville, Illinois, we handle matters in areas of DuPage County, Cook county, Will County, and Kane County including Aurora, Barrington, Bartlett, Carol Stream, Hoffman Estates, Naperville, Oak Brook, Roselle, Schaumburg and Streamwood.
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