When an elderly parent is acting erratically and making poor decisions about their finances and personal care, or if they have been diagnosed with dementia or another illness, it can be frightening for their family members. You want to respect their dignity, yet you know they are no longer able to exercise good judgment and decision making. When you become concerned about an older person’s mental wellbeing or ability to make decisions, you are questioning in their legal capacity to make decisions. At this point, you may need to consult a lawyer to have your parent legally declared incapacitated.
The legal standards for capacity are determined by state law. In Illinois, incapacitated is a legal disability defined under the Probate Act of 1975:
A principal shall also be considered incapacitated if:
(i) a physician licensed to practice medicine in all of its branches has examined the principal and has determined that the principal lacks decision-making capacity;
(ii) that physician has made a written record of this determination and has signed the written record within 90 days after the examination; and
(iii) the written record has been delivered to the agent. The agent may rely conclusively on the written record.
A judge or a physician can make the determination of incapacity. An elder law attorney can advise you of your legal options if a parent has become incapacitated and can no longer make their own decision.
An elder law attorney has experience in the specific legal issues that impact aging people, including social security, health care, retirement and estate planning. Legal documents that an elder law attorney can help you put in place to help you care for an incapacitated parent are:
1. Power of Attorney
If your parent becomes incapacitated and unable to make decisions for themself, a POA is a legal document that appoints somebody to make decisions on their behalf. With a financial POA, you’d be saying who can call a bank or pay a bill on your behalf. A health care POA says who can communicate with your parents’ medical team and make decisions regarding their care. Once it is determined that your parent is incapacitated it is too late to execute a power of attorney. In this case, you should speak to a guardianship attorney to discuss what options you have.
2. Will or Trust
A will is instructions for how someone wants their assets to be distributed after their death, and who they want to manage their estate. A trust is also legal instructions on how someone wants their assets managed, but it can be put into effect while the person is alive, called a living trust, or after their death.
3. Advance Health Care Directive
An advanced healthcare directive is a legal document that states how someone wants their end-of-life care to be handled, assuming that they are unable to participate in their own decision-making.
An elder law attorney can advise you of your legal options if a parent has become incapacitated and can no longer make their own decision.
Do you have questions about protecting your aging parents? Our experienced Illinois elder law attorneys can advise you on the best options to protect your assets and loved ones. To talk to an estate planning attorney contact the Estate & Probate Legal Group at 630-687-9100. We provide legal services in Cook, Dupage, Kane, Lake, and Will counties.
