When you sign a power of attorney (POA), you are empowering someone else to act on your behalf under specific circumstances. There are 3 basic types of power of attorney. One type called a conditional or springing power of attorney springs into action if you become incapacitated, mentally incompetent or disabled.
A springing power of attorney holds the power in reserve and does not grant it until the specific circumstances arise that are described when someone creates the POA. Often a springing power of attorney takes effect when the person granting the power is declared incapacitated.
The Illinois Power of Attorney Act established the legal definition of incapacity for residents of Illinois:
“Incapacitated”, when used to describe a principal, means that the principal is under a legal disability as defined in Section 11a-2 of 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.”
In addition, the Illinois Short Form Power of Attorney for Health Care allows you to legally choose someone to make health care decisions for you if you are unable to make them yourself, including declaring that you are incapacitated, provided that you create the power of attorney while you are still able to make decisions for yourself. That person will become your health care representative when you are declared incapacitated by a doctor.
It is smart to protect yourself and be very specific in establishing the conditions for a springing power of attorney to go into effect. An experienced Lombard power of attorney lawyer can explain your options and the ramifications of each type of POA, and advise you of the right powers to fit your needs. For more information about how custom powers of attorney could benefit your situation, contact Estate & Probate Legal Group in Illinois today at 630.382.8069.