When Buffalo Bills player Damar Hamlin went into cardiac arrest on the field on January 2, it was an alarming reminder of the need for people who can help oversee important medical decisions when a person becomes unable to care for themselves. A power of attorney is a powerful legal document that designates an agent to perform specified actions, including making health care decisions.

The Illinois Power of Attorney Act became law as 755 Illinois Compiled Statute (ILCS) 45/ and provides that the requirements for a power of attorney are an agent being designated with a written description of their powers, a properly signed power of attorney document that is signed by the principal that is properly witnessed by a person at least 18 years of age, and a principal acknowledging and identifying their own signature and having the document notarized. Only individuals of sound mind who are mentally competent can legally sign and appoint a power of attorney.

Types of Powers of Attorney

Illinois generally recognizes four kinds of powers of attorney:

Creating a will can be a complicated legal task. The process for executing a will is not nearly as simple as having the executor place his wishes regarding the disposition of his future estate property in writing and sign it. There is a legally-proscribed method for executing a legally effective will. The rules regarding how a will is to be executed are often interpreted quite strictly. A single deficiency in the execution procedure could lead to the entire will being held as invalid and set aside, forcing an estate into the intestacy process. To ensure that all formalities required for the creation of a valid will have been upheld, it is best to execute your will only in the presence of or at the explicit direction of your attorney. While not always possible in certain circumstances, such as when a testator is in the hospital or a skilled nursing facility, a lawyer’s office is generally the most secure place to execute your last will and testament. 

The Formalities of Will Execution in Illinois

While the procedure for executing a will may seem archaic or needlessly strict, these rules are in place to guard against fraud. When a will does not follow the guidelines described in the Illinois Probate Act, it is significantly more difficult to guarantee that a will is legitimate. 

Formalities that must be respected when executing a will include: 

Most people think of estate planning as deciding what happens to your belongings after you pass away. While this type of planning, called testamentary planning, is a very important part of estate planning, there is much more to it than that. A thorough, comprehensive estate plan also includes planning for potential future incapacity. People are living very long lives these days, and the fact is that many of us will one day reach a point where we can no longer make important decisions for ourselves, including medical decisions. By using a living will combined with powers of attorney, you can make certain important choices regarding your future medical care now. An attorney can help guide you through creating one so that you can take control of your own later-in-life care.

What Decisions Can I Make Using a Living Will in Illinois?

Living wills are used to govern end-of-life care for people who are terminally ill. The main purpose of a living will is to allow people to choose for themselves whether they would want to receive life-prolonging care in the event that they become terminally ill while unable to make decisions for themself due to incapacity.

Most people have very strong opinions about whether they would want to receive aggressive treatments like chemotherapy that may prolong their life without curing them at a point in their life where they are incapacitated, typically by age-related mental deterioration. Some people have religious beliefs and would want all efforts made to keep them alive as long as possible. Others would prefer to be placed in hospice and kept comfortable. These are intensely personal decisions that everyone should make for themselves.

Probate is not a quick and easy legal proceeding. It can take time, money, and a lot of patience to get through. It can also take significant legal skills if there are difficulties at any point in the process. When you are grieving the loss of a loved one, probate may be the absolute last thing you want to deal with. The added stress of trying to handle a complex legal procedure alone can be overwhelming. There are parts of probate that may be frustrating or confusing. There are a lot of parties who need to be notified, and there is a strong possibility that at least one dispute or claim will need to be settled. In some cases, probate can take upwards of a year. You should be ready for some type of challenge to arise. Working with a probate lawyer can help alleviate the burden of probating your loved one's estate.

The Realities of Going Through Probate in Illinois

Especially if this is your first experience with a probate court, you might be feeling very overwhelmed. The process is not as simple as submitting a will and distributing estate property. If your loved one did not leave a will and you are facing intestate probate, the process may be even more complex. A few things you should expect during probate include:

• Waiting - Patience is key during probate. There is a lot of waiting around involved. You will need to wait while potentially interested parties are notified and given a chance to file contests. You will need to wait for court dates. There may be long periods where it seems like nothing is happening.
• Big responsibilities - If you are the estate administrator, then you are taking on an enormous commitment. The duties of a personal representative are numerous. You are expected to handle everything from finding and notifying the decedent’s creditors to taking an inventory and valuation of all estate property. This is no easy task.
• Dealing with creditors - Part of settling an estate during probate is addressing creditor claims. Any parties the decedent owed money to will have a chance to make a claim. It can be immensely frustrating to deal with creditors taking money out of your loved one’s estate, but this is part of the process.
• Notifying everyone - One of the most potentially challenging parts of probate is figuring out who you need to notify. Anyone with a potential interest in the estate should be notified, including the decedent's family members.
• Feuding - Even if no one files a formal contest, family feuds are common during probate proceedings.

Probate is a lot to take on by yourself. It is much better to be represented by an attorney who can address problems that may arise.

The fact is that most people who live to a certain age are likely to experience age-related mental incapacity. Alzheimer's, dementia, and the natural effects of aging can lead you to become confused, disoriented, and unable to make important decisions or manage your own affairs. Someone else will have to step in and start making medical and personal decisions, as well as managing your finances. If no incapacity planning has been done, the most likely solution is court-ordered guardianship. Guardianship proceedings are public and can be very upsetting to the ward, who has little or no say over who the guardian will be. Incapacity planning allows you to make certain decisions ahead of time or appoint others to do so for you without any court involvement, so do not neglect this important part of estate planning.

What Legal Documents Are Part of Incapacity Planning?

When you start working on your incapacity plan, there are several documents your lawyer may use. These documents and their purposes include:

• Living will - A living will allows you to directly make a few decisions about your end-of-life care. It does not take effect until you are incapacitated and terminally ill. You can make choices like whether you would want life-prolonging care in this situation or simply comfort care.
• Health care power of attorney - If you are incapacitated, someone else will have to make medical decisions for you and access your medical records to inform those decisions. With a health care power of attorney, you can choose who that person will be. This gives you an opportunity to talk with that person and make sure they understand your wishes and are prepared to carry them out. It takes effect when you are deemed incapacitated.
• Financial powers of attorney - These documents allow you to choose someone you would want to manage your financial affairs when you are no longer able to. This person will need to do things like making sure your bills are getting paid and managing your Social Security benefits. It takes effect either when you become incapacitated, or at any other time you choose.

You can be specific about what your agent can and cannot do on your behalf. You can add clauses saying that your agent must consent to pain control measures, but may not consent to treatment for incurable cancer. Or, you could use a clause in your financial power of attorney that prohibits your agent from selling the family home.