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Power of Attorney: What Happens If You Do Not Have One?


Power of attorney documents allow you to name an agent that can make decisions for you in the event that you are no longer able to do so. For example, in a “Power of Attorney for Property”, you name an agent who can make decisions regarding your finances. Likewise, in a “Power of Attorney for Healthcare”, you name an agent who can make decisions for your health care and for your end of life care. In the event you become incapacitated, your agent will be able to step in.

Throughout our entire lives most of us are competent to make decisions about our finances and our healthcare. We tell the doctor whether or not we want a procedure and we direct the bank to transfer our money to pay our bills all the time. We make these decisions so routinely that sometimes we forget to think about what would happen if we aren’t able to make those decisions anymore.

Through the normal course of life and also because of unfortunate tragedies, many people have a period of time where they are not legally capable of making their own decisions regarding their finances.

By far the most common situation is the loss of competence due to the natural aging process. People live a long time nowadays and it is not uncommon for our minds to decline at advanced age.

If you do not have valid power of attorney documents in place, no one be will be able to make financial and healthcare decisions for you without the probate court granting him or her that authority in appointing them your legal guardian. This process is time-consuming and often expensive. It requires a certified statement from a physician stating that you are unable to manage your personal and financial affairs. The judge may appoint a Guardian Ad Litem to do an investigation and report on the disabled person. Further, it requires that all of your personal and financial affairs become a matter of public record before the court.

The judge will appoint a guardian on behalf of the disabled person and the guardian can take some of the same actions as an Agent under a Power of Attorney. The guardian must ask judicial permission to take certain actions and must also submit annual reports to the judge. These reports and requests for permission usually also require the assistance of a lawyer. The court will retain jurisdiction over the matter until the person passes away or regains the ability to manage their affairs.

If creating an Estate Plan seems confusing and overwhelming, consider working with the Hays Firm LLC to execute your Power of Attorney for Healthcare and other estate planning documents. 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 and after your death. Please contact us to talk about how we can help.

Andrew Hays and his legal team at Hays Firm LLC in Chicago are knowledgeable attorneys who have a great deal of experience with advising on and securing power of attorney for clients who wish to protect the rights of their loved ones.  Please contact us to talk about how we can help.