Most people think of estate planning as deciding what happens after death. But some of the most important planning addresses a different question: who will act for you if you are alive but unable to make or communicate decisions? A stroke, a car accident, dementia, or a serious illness can create that situation suddenly or gradually. 

A will cannot help during that time, because a will speaks only at death. Disability planning is handled by a different set of documents, chiefly the power of attorney for property and the power of attorney for health care. 

Two Different Powers of Attorney 

The Illinois Power of Attorney Act, 755 ILCS 45/, governs both types. A power of attorney for property names an agent to handle financial and legal matters. A power of attorney for health care names an agent to make medical decisions. They are separate documents with separate purposes, and most adults should have both. The Act provides a statutory short form for property powers (755 ILCS 45/3-3), and Illinois also provides a statutory form for health care powers. 

The Power of Attorney for Property 

A property power of attorney lets your agent handle the matters you authorize, which can include banking, paying bills, filing taxes, managing investments, dealing with government benefits, and handling real estate. You decide how broad or narrow the authority is, and you can add limits or conditions. 

Either power of attorney can be effective immediately upon signature or “springing”, which means a medical diagnosis must be obtained to show how the principal is not competent. Unless the document sets an earlier end date, the agency "continues until the death of the principal, notwithstanding any lapse of time, the principal's disability or incapacity or appointment of a guardian for the principal" (755 ILCS 45/2-5). Acts your agent takes during your incapacity bind you as if you were competent (755 ILCS 45/2-6(a)). 

Your agent is also accountable. An agent must act in good faith for your benefit using due care, competence, and diligence, and must keep a record of all receipts, disbursements, and significant actions taken under the power of attorney (755 ILCS 45/2-7). If records are requested and not produced within 21 days, the person requesting them can ask a court to order them, and the court can assess costs and attorney's fees against an agent who withheld them without good cause. 

One limit is important to understand: a power of attorney ends at your death (755 ILCS 45/2-5). It is a tool for managing your affairs during your life, not for passing property after you are gone. 

The Power of Attorney for Health Care and the Living Will 

A health care power of attorney names the person who will speak with your doctors and make medical decisions when you cannot. Because you choose the agent, you can pick the person who best understands your values and is most able to carry out your wishes under pressure. 

Many people pair it with a living will under the Illinois Living Will Act, which states your wishes about death-delaying procedures if you have a terminal condition. A health care agent can apply your values to situations a living will does not anticipate, so the two documents are often used together. 

What Happens Without These Documents 

If you become unable to manage your finances and have no property power of attorney, no one has clear legal authority to act for you. Your family may need to ask the court to appoint a guardian of your estate under the Probate Act. That is a court case, with filings, hearings, and continuing court supervision, and the court, not you, decides who serves. Illinois law limits guardianship to what is necessary: it "shall be ordered only to the extent necessitated by the individual's actual mental, physical and adaptive limitations" (755 ILCS 5/11a-3(b)). A valid power of attorney is often the less restrictive alternative. Learn more about guardianship. 

For medical decisions, Illinois has a fallback. When a patient lacks decisional capacity and has no available health care agent, the Health Care Surrogate Act supplies a default list of decision-makers, beginning with a guardian of the person, then a spouse, then adult children, parents, adult siblings, and others (755 ILCS 40/25). The list works, but it may not reflect your choice. It can also put several relatives at the same level, such as three adult children, who must try to agree, and disagreements among them can end up in court. 

Choosing Your Agents 

The documents are only as good as the people you name. Consider: 

Keep Your Documents Current 

Review your powers of attorney after major life events. Divorce is one example: if a judgment of dissolution of marriage or legal separation is entered after you sign, your former spouse is treated as having died for all purposes of the agency (755 ILCS 45/2-6(b)). If your spouse was your only named agent, you may have no agent at all. When your circumstances or wishes change, do not try to edit your existing power of attorney. Instead, sign a new one. The new document should expressly revoke your earlier powers of attorney, because under Illinois law signing a new power of attorney does not by itself revoke a prior one (755 ILCS 45/2-5). You must have capacity to sign a new power of attorney, which is why it is best to plan while you are healthy. 

Plan Before You Need It 

Powers of attorney for property and health care let you decide, in advance, who will act for you and how. Without them, those decisions may fall to a statutory list or a court. If you would like to put these documents in place or review the ones you have, contact Katherine L. Maloney & Associates, LLC at 815-556-2057.