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Park Ridge IL Medicaid and Estate Planning Legal Blog

Monday, February 12, 2018

Illinois Power of Attorney vs. Guardianship

Q: What’s the difference between a power of attorney and a guardianship?

Are you one of those people who’ve avoided seeing an Illinois estate planning attorney because you don’t want to face the thought of dying? Well, if so, you are in good company. But the peace of mind that comes from putting your affairs in order and protecting your family’s financial security is worth facing the fear.

Most people have heard of a last will and testament, or even a trust agreement, which are legal documents that provide for how you want your real and personal property to be transferred to others after you die. But there is more to an estate plan than just those documents.

Dying is only part of the picture. A comprehensive estate plan also includes the documents that address what you want to happen if you become incapacitated at any point prior to dying. Incapacitation can happen through a physical or mental injury or condition that makes you unable to manage your own financial, medical, or personal affairs. Yes, it is another uncomfortable thought to envision, but it frequently happens and it’s best to be prepared for it.

An estate planning lawyer can prepare Illinois Power of Attorney documents that confer the power to make medical and/or financial decisions on your behalf to agents to whom you choose to give those powers. A durable general power of attorney can survive your becoming incapacitated, but it functions like a blank check—meaning that the agent can do anything to your financial assets that you could. Since they could literally ruin you, it’s important to choose agents wisely. With a limited power of attorney, as its name implies, the agent can only act in a limited capacity on the maker’s behalf (for example, to handle a real estate transaction).

There are also medical powers of attorney that designate who can make healthcare decisions on your behalf if you become incapacitated. Your agent should know how you’d want your end-of-life and other healthcare decisions handled.

It is important to note that Powers of attorney must be prepared while the principal is of sound mind—not after they are already incapacitated.

So, what happens when someone who didn’t designate agents in powers of attorneys becomes incapacitated?

That’s where a guardianship proceeding comes into play. And while an Illinois guardianship attorney can help you, it’s not something that can be done through a form in the office. It requires a formal court proceeding by either a family member who seeks to become a guardian or by another party or agency in the absence of a willing family member.

That’s why planning for incapacity in advance is the less expensive, more efficient, and more intelliget option—and the only way you can be certain that the person you want to take care of you and your affairs will be the one who has the legal right to do so when the time comes. Why let this decision be made by a judge instead of yourself?

A case in point is the local story of the “serial stowaway”—a woman who reportedly spent time in a mental health facility and has been “detained several times across the country for trying to bypass airport security” to illegally access airplane travel without a ticket, including one alleged successful flight to London. The court will now “evaluate her sanity and mental fitness to stand trial on felony theft charges”. Her attorney, reportedly stated that the woman has family and hopes to get her out of the criminal justice system.

If you need help with an initial estate plan, or would like to modify an existing one, or if you need help with a guardianship matter, the Law Office of Thomas J. Hansen can provide you and your loved ones with all of the legal tools you need to plan for things like incapacitation. Contact us today for a consultation.

From our office in Park Ridge, we assist clients throughout Illinois in Cook County, as well as Niles, Des Plaines, Glenview, Norridge, and Rosemont.

Source: http://www.chicagotribune.com/news/local/breaking/ct-met-serial-stowaway-marilyn-hartman-court-20180131-story.html

Thomas J. Hansen, LTD. assists clients in Park Ridge, Cook County, IL as well as Niles, Des Plaines, Glenview, Norridge, and Rosemont.

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