While each of us hopes that we remain competent until our last breath and that we never need others to make financial and/or health care decisions for us, the reality is that some of us will, at one time or another, need assistance with our financial and health care decision-making. Thus, it is important to consider planning ahead, in the event of one’s future incapacity/incompetency. Some refer to this type of planning as “disability planning.” At our office, however, we prefer to refer to it as “life care planning,” as it is truly creating a plan for decision-making during one’s lifetime.
For most, creating durable powers of attorney (also known as “advance directives”) will be the key components of creating a life care plan. In Illinois, durable powers of attorney are authorized by the Illinois Power of Attorney Act. A durable power of attorney allows a competent person (the “principal”) to appoint an agent to make decisions for the principal, should the principal later become incapacitated/incompetent and not be able to make decisions for himself/herself.
There are two types of statutory powers of attorney. One is for health care and personal care issues, and is referred to as a Durable Power of Attorney for Health Care. The other is for financial and property management issues, and is referred to as a Durable Power of Attorney for Property. The same person may serve as both the health care agent and the financial agent, or different individuals may be appointed. The principal may also appoint back-up agents, in the event that the primary agent becomes unable, or is unwilling, to act. Likewise, the extent of the powers which the principal delegates to the agent may be very broad, or narrow and specific, and should be determined by each person’s individual circumstances.
Persons who do not create a life care plan, and later become incapacitated/incompetent, may end up with a court-ordered guardian being appointed to make their financial and/or health care decisions. The guardianship procedure involves bringing the courts into one’s private matters, and may also result in substantial time and legal expenses. Creating a life care plan (which includes Durable Powers of Attorney and in some cases other advance directives) now, while one is competent, allows individuals to decide who they want to act on their behalf and, also, reduces the likelihood that a future guardianship will be necessary.
We recommend that all competent persons, age 18 or older, consider creating Durable Powers of Attorney, and a life care plan, sooner than later. The risks of waiting to create Durable Powers of Attorney, and a comprehensive life care plan, are simply too great. By planning now, you will be taking the necessary steps to increase the likelihood that, should you later become incompetent, you will receive both the kind of personal care and assistance with your finances that you wish to receive, and that the person(s) you choose will be the ones assisting you. Our attorneys have the knowledge and experience to guide individuals through the decisions necessary to create durable powers of attorney (and other life care planning documents) that are in accordance with their wishes and that are designed to meet their needs, and sometimes unique, circumstances.
For more information regarding life care planning, please contact the Elder Law Center, P.C. division of our law firm.