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What is an Advance Directive in Estate Planning?


Advance directives are an essential part of estate planning. An advance directive is a document that spells out your wishes for the time period in which you are unable to make your own personal, financial, and health decisions. The time period in which you are incapable of caring for your own affairs may brief and temporary. For example, if you have a sudden illness, suffer from a severe accident, or undergo major surgery, you may be incapable of making decisions for a temporary time period. Upon recovery, you may be completely competent at handling your affairs on your own.

On the other hand, you should also plan for a period of more permanent disability. As we age we become physically and mentally unable to manage our affairs. The onset of dementia may also limit our ability to make business and personal decisions at the end of life. Therefore, an advance directive is a tool for people of all ages.

Under Illinois law there are a variety of different types of advance directives allowed. The Illinois Power of Attorney Act sets out the rules about creating durable powers of attorney. The law also provides a form for both a Power of Attorney for Property and a Power of Attorney for Healthcare.

Illinois law also permits and advance directive, called a “Living Will.” A Living Will applies only if the person who executed the living will has a terminal illness or when death is imminent. In a Living Will, a person specifies in writing what their wishes are regarding death-delaying treatment. Procedures that are considered “death-delaying” are defined under Illinois law and should be discussed with your physician.

Another type of advance directive in Illinois relates to mental health treatment. Under Illinois law, a person can draft a document that specifically addresses only mental health treatments. The specific treatments include the use of psychotropic medication and the admission to a residential mental health facility. This advance directive is not often used because it is duplicative of the Power of Attorney for Healthcare. If you are considering an advance directive that specifically addresses mental health treatments, please contact our firm to discuss your intentions and concerns in a confidential manner.  

There are other common advance directives that Illinois law permits, including a do not resuscitate order (“DNR”) and directions regarding your remains after you die. All of these directives may be discussed with an attorney at Hays Firm in a confidential environment. Our attorneys have experience dealing with complex health and familial issues that impact estate planning. Our attorneys also have families and have personally dealt with many of the issues relating to end of life care. Feel free to contact us for a free one-hour consultation to begin creating your estate plan.