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A Power of Attorney is a written document in which an individual (Principal) grants another person (Agent) the concurrent right to act on the Principal’s behalf regarding his or her property and/or assets. A Power of Attorney can be limited to certain acts (or property) or expanded beyond the Statutory format. When a Power of Attorney is designed or designated to continue during a person’s incapacity or when a person is incompetent, it is said to be a “Durable” Power of Attorney. Normally, a Power of Attorney becomes null and void upon the death of the person who created the Power. A Power of Attorney for Healthcare (or Healthcare Power of Attorney) allows an agent to make healthcare-related decisions on your behalf, when you are unable to do so. Powers of Attorney can be one of the most important (and least expensive) documents a person can create as part of his or her overall Estate Plan. There are documents that should be put in place before you are ill and certainly while you are competent to do so. Illinois has passed a Law called the “Durable Power of Attorney Law” which provides a Statutory form for both Powers of Attorney for property and Powers of Attorney for Healthcare. By having a Statutory “format”, it is believed that financial institutions and others relying on these documents would be more accepting of a recognizable Statutory form of Power of Attorney, as opposed to “custom” Powers of Attorney drafted by a person’s lawyer. Unfortunately, Powers of Attorney are often omitted (or the importance discounted) when a person puts his or her Estate Plan in place. Many attorneys do not understand the significance of the “additional powers” provisions and do not know what language needs to be added to the Statutory format in order to properly allow the Agent to act upon the incapacity of the Principal. A Power of Attorney properly drafted by an experienced Elder Law attorney can allow a spouse (or other trusted person) to make allowable transfers on behalf of a disabled person prior to such a person qualifying for government benefits or to facilitate other effective Medicaid planning. Without a Power of Attorney (containing proper additional powers language) in place, the only remedy often left to a spouse (or child) is to Petition the Court to be appointed as the Guardian of a disabled person, which takes more time and money to accomplish. Often, when proper Powers of Attorney are in place (for Property and for Healthcare with proper “additional powers language”) the need for a Guardianship (or Court procedure) is eliminated. The downside of a Power of Attorney is the giving up of the exclusive right to act on your own behalf and the danger of giving a third party the right to access you property and/or assets. Obviously, the person named to act on your behalf under a Power of Attorney must be someone you trust implicitly, who will act in your best interest . To schedule an initial Elder Law/Medicaid assessment,
Please call the law firm of Russell E. Baldwin, Chartered
at (630) 717-4552 Russell E. Baldwin, Chartered
1601 North Bond Street
Suite 206
Naperville, IL 60563
Phone: (630) 717-4552
Fax: (630) 717-4556
Email
Member of National Academy of Elder Law Attorneys (NAELA)
Member of the Probate Committee of the DuPage County Bar Association
Member of the Probate Committee of the Kane County Bar Association
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