Powers of Attorney Explained
People are living longer. For some people, however, living longer is not always living better. Think about your own family, or your friends. Most of us know someone who is either in need of extra care themselves, or who is caring for someone else who just cannot do the things they used to anymore. As Americans age, the need to plan for the “what if’s” has never been greater.
There are steps you can take today to ensure that if the time comes when YOU need extra care, YOUR caregivers will have the tools they need to ensure your needs are met. One common legal mechanism that can provide access, permission, and guidance to future caregivers is the Power of Attorney. In Illinois, there are two types of Powers of Attorney. One is a Power of Attorney for Health Care, and the other is a Power of Attorney for Property.
Power of Attorney for Health Care
A Power of Attorney for Health Care is a legal document in which someone who either needs care now, or anticipates needing care in the future (referred to as the “Principal”), names individuals he or she trusts (referred to as “Agents”) to assist with his or her medical care. These Agents have a broad range of powers and responsibilities, including but not limited to making decisions about the Principal’s medical care, accessing medical records, and choosing treatment options. Agents also can make end-of-life decisions in accordance with the Principal’s wishes and instructions. What makes this document appealing to many is that they do not require court approval, and they can be revoked at any time, so long as the Principal is competent to make his or her own decisions.
It is important to note that so long as the Principal is willing or able to make his or her own decisions, the Agent has no power. For the Agent to step in, the Principal must either: 1) voluntarily relinquish his or her decision-making powers (preferably in a writing that is signed and dated by the Principal and witnessed by someone other than the named Agent); or 2) a medical professional familiar with the Principal’s current condition must determine that the Principal lacks the capacity to make decisions about his or her own care.
The Power of Attorney for Health Care is a statutory form, which means the same form is used for everyone in the State of Illinois. However, there are a few areas where the Principal can “customize” the document to accomplish their specific wishes, such as the following:
- Whether or not the Principal wants to extend his or her life by artificial means or heroic measures.
- Whether the Principal is – or wants to be – an organ donor, and the extent of that organ donation.
- What should happen to the Principal’s remains when they pass away.
In addition to the above points, the Principal can also designate specific procedures or conditions that are either included or excluded from the permissions granted to the Agent (within reason, of course!).
Power of Attorney for Property
Like its Health Care counterpart, the Power of Attorney for Property allows the Principal to name an Agent who can manage the Principal’s financial affairs. Again, the Agent’s powers do not exist unless the Principal is no longer willing or able to handle his or her own financial affairs. This is also a statutory form that allows for a bit of customization, but in general, once active, the Agent has broad discretion to manage the Principal’s financial affairs.
A Power of Attorney for Property also creates a fiduciary relationship between the Agent and Principal. In other words, if the agent fails to act in the best interests of the Principal’s financial affairs, the Agent could face serious penalties. In cases of extreme abuse of power, those penalties could involve criminal charges. For this reason, great care and consideration should be used when designating an Agent for a Power of Attorney for Property.
Powers of Attorney for Health Care and Property survive as long as the Principal is alive and can be revoked by the Principal at any time for any reason, so long as the Principal is competent to make that decision. Agents can also refuse to serve and can withdraw themselves as potential Agents in writing. While all Powers of Attorney are required to be signed and witnessed, they do not need to be approved by the courts. At the same time, however, properly executed Powers of Attorney can be used as persuasive evidence in court proceedings.
Although these are relatively simple documents to prepare and execute, it is always wise to seek the advice of an attorney who can help ensure your documents will provide for your needs once you cannot provide for them on your own. The experienced Estate Planning attorneys at Arteaga Law, LLC can help ensure that your health and assets will be protected and that your legal documents will stand up to even the strictest of scrutiny. Consultations are always free – contact our offices today at (224) 655-7179 or via email at Info@Arteaga.Law to schedule yours!