Planning for Death to Ensure Your Wishes Are Preserved, Part One

 Posted on August 06, 2014 in Estate Planning

The conversation of planning for death, incapacitation, and mental or psychological deterioration is difficult. Even when instructions are left, the truth remains that too often the actual intention of these documents are subverted. This unfortunate situation lends itself to an incredible amount of conflict among loved ones, with many of whom are too emotional to be rational.

Many of these issues arise not only after death, but also during chronic illnesses, after unexpected accidents, and any time one is not in a state to make a competent decision. Thus, it is necessary to place the utmost time and consideration into designating the person, or persons, whose duty it will be to ensure your wishes are legally preserved.

In the State of Illinois, critical decision makers consist of several types. Each has a separate set of rules, hierarchy, duties and influence. It is important to understand the differences between these agents, as well as how each is employed. For instance, the person in charge of your finances may or may not be the same person making health decisions for you.

The following is a list of the different types of agents that can legally act on your behalf, as well as a short description of each:

• Power of Attorney: This is an official agreement between a designated agent and the person he or she could be making decisions for which can cover many areas of law. These agreements are individual in nature, and give more individual discretion as to how far powers extend. Responsibilities can be added and removed as needed. What specifically makes the power of attorney so important is the fact that he or she can legally act on your behalf regardless of your physical or mental status. A person may have a medical power of attorney and a property power of attorney.

• Guardianship: Generally reserved for extreme circumstances, guardianship is a completely different concept. This is a direct agent of the court who has the authority to make decisions about your living arrangement, some medical care, and personal finances. In these cases, family members are given no preference by the court. Guardianship can be appointed to financial institutions, direct agents of the court, or any person over 18 without a felony conviction. This is a complicated process, and requires proof to the court of disability from multiple sources. It is often not revocable. Also, guardianship comes in several different forms.

• Health Care Surrogate: This is the situation you may want to avoid if possible, as it has the potential to cause the most conflict among loved ones. A health care surrogate is a person designated by a hierarchy of family members and is appointed to make decisions about your health care and finances should you be deemed incompetent. A health care surrogate is usually employed when a cohesive estate plan is not in place to address these issues. The order in which an Illinois court will appoint a surrogate is as follows:

  1. Spouse,

  2. Child,

  3. Parent,

  4. Sibling,

  5. Grandchild, and

  6. Friend.

• Mental Health Advance Directive: This is a signed document of consent allowing an agent to make decisions regarding psychological medical decisions. Specifically, this document addresses the administration of psychotropic medications, use of electroconvulsant therapy, and hospitalization if necessary.