Power of Attorney as a Way to Prepare for Incapacitation

Estate Planning Lawyer

Being prepared for a time when a person may be incapacitated and unable to handle their affairs is not something most young, healthy people think about. However, no matter where you are in life, having a plan in place that designates a person to take care of your interests in case of incapacitation is always a good idea. In Illinois, you can prepare for incapacitation by finding a person you trust and giving that person power of attorney.

In most states, you can give a designated person power of attorney over your finances or over your health care. The person designating a power of attorney is referred to as a principal. Most people designate their agent over health care matters in an advanced care directive. This is a legal document that spells out a person’s wishes for their treatment when they are incapacitated and can no longer consent to or decline treatment of a certain nature. The person designated to act as an agent through the power of attorney can ensure the principal’s wishes are followed.  

There are some restrictions on who can be named an agent. A principal’s doctor or another person providing medical care cannot be designated as an agent with power of attorney over the principal’s health care. There are few restrictions on who can be appointed an agent in a power of attorney over finances. However, because it involves financial matters, it is important to make sure the agent is someone you trust and believe would not take advantage of you.

When preparing a financial power of attorney, it is important to make it a durable power of attorney. A durable power of attorney survives the principal’s incapacitation. A financial power of attorney is sometimes referred to as a power of attorney over property. When you have a financial power of attorney, your designated agent takes care of your financial matters, such as paying bills, selling assets, and settling debts. A power of attorney over finances allows an incapacitated principal to avoid getting into financial trouble because of the incapacitation.

A power of attorney can be cancelled by the principal at any time before incapacitation. If the principal is incapacitated, and there are concerns about the agent’s actions, the principal’s family members may be able to petition a court to revoke a power of attorney from the agent. These kinds of lawsuits are filed to remove an agent who is breaching his duty to act in the best interests of the principal.

Contact an Experienced Estate Planning Attorney

If you want to include an advanced healthcare directive or designate an agent to have power of attorney over financial matters in your estate plan, you need an experienced estate planning lawyer Phoenix, AZ trusts to guide you through your planning process. For more information about this or any other estate planning matter, contact an attorney to set up a confidential consultation.

Thank you to our friends and contributors at Kamper Estrada, LLP for their insight estate planning and power of attorney.