What does it mean to be declared incapacitated, and what are the legal implications? Being declared incapacitated isn’t something that happens only to the elderly: it can happen to anyone as a result of an illness, an accident or if someone is determined to be mentally or physically unable to make decisions for themselves.
The Illinois Power of Attorney Act became effective July 1, 2011, and 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.”
The Illinois Short Form Power of Attorney for Health Care Act 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.
What are your options if you become incapacitated, and want to legally protect yourself if you are no longer able to make your own decisions?
Durable Power of Attorney
If you are declared incapacitated by a judge or a physician, the court could award a durable power of attorney to someone to act on your behalf. A DPOA allows the designated person to handle affairs in a specific area of a person’s life, such as in financial or health matters if you become incapacitated.
Springing Power of Attorney
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, such as being declared incapacitated. Often a springing power of attorney takes effect when the person granting the power is determined to be incapacitated by a physician or judge.
An experienced 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 and goals if you become incompaciated.
If you have questions about incapacity planning and how and when to create a power of attorney to protect your future, 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 630-864-5835.