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Planning for Incapacity and Power of Attorney for Healthcare


Individuals aged 50 and over should make a plan to provide for their care in case they become incapacitated. Incapacity, in a legal sense, does not refer to a physical disability or physical impairment. Rather, when elder law attorneys discuss incapacity, they are referring to an individual’s mental ability. Specifically, elder care attorneys and guardianship law are concerned with whether a person can make personal decisions and financial decisions.

Personal decisions include whether a person is able to meaningfully care for him or herself. Is the person capable of making decisions regarding their medical care and treatment? Is the person willing and able to accept care in the home or in a residential facility?

An incapacity may be only temporary – maybe after a planned major surgery or after an unforeseen accident. However, even in a temporary emergency your family may not be able to advocate for your medical care. A hospital or nursing home may require a loved one to open a guardianship estate. A guardianship estate in Chicago (and throughout Illinois) is a complicated and often expensive process.

A simple tool that may will help you and your family avoid the protracted guardianship process is a Power of Attorney for Healthcare. A Power of Attorney for Healthcare allows you to nominate a person to act on your behalf to make healthcare decisions based on your personal values and wishes when you are no longer to make these decisions for yourself. The person you nominate or name in your Power of Attorney for Healthcare is called your “agent.” You may identify a successor agent or a “back up” agent just in case your named agent is unable to act. However, you are NOT able to name co-agents. Only one person can act as your agent at any given time. This is important because it allows the doctors to rely on the decisions of one person, rather than have to sort out a dispute between two co-agents.                              

Because your agent is given such extensive decision-making power over your health and well-being, it is important to nominate someone you trust. You should also speak to your agent about your values and your end of life plans. In the Illinois Power of Attorney document, you have the ability to direct your agent to make specific end of life choices for you.

If you are married or in a committed partnership, your spouse or partner is likely the best candidate to be your agent under the Power of Attorney for Healthcare. If you are single, widowed, or if your spouse or partner is not the best person to be your agent, you should keep in mind the following guidelines when choosing an agent. First, the individual must know you very well and must be at least 18 years of age. You must trust that your agent will carry out your wishes, even if he or she may disagree with those wishes. Also, your agent must be comfortable talking with doctors and nurses during an upsetting time. Finally, your agent must be willing and able to act – and will be there for you if you are in an accident or become suddenly ill. Keep in mind, your healthcare agent will NOT be automatically responsible for your health care expenses.

It is important for you and your family to have a comprehensive estate plan in place to protect you and your loved ones during your life. The Chicago elder law attorneys at the Hays Firm can help you create and execute your Power of Attorney for Healthcare and other documents necessary to ensure that your estate plan is secure and your loved ones are provided for. Please contact us to talk about how we can help.