By Katherine “Kat” Delgado, Estate Planning, Divorce and Family Law Attorney

My dad is an Eagle Scout and has always made a big deal about being (overly?) prepared. With this advice following me through life, it’s no surprise that using the law to plan for the future is something that interests me. Discussing the eventuality of aging and dying is a conversation no one really wants to have. However, it’s a conversation that can happen gradually—so let’s start with planning for emergencies using advance directives.

Advance directives are exactly what they sound like: instructions and authority created prior to the time they will be needed. These directives ensure that your wishes are known and respected if you’re ever unable to speak for yourself. There are several types of directives: naming a health care agent, creating a living will and assigning a durable power of attorney for property. Each of these options can play a key role in protecting your well-being and your loved ones’ peace of mind.

Powers of Attorney for Health Care

You simply cannot predict when serious illness or injury may occur. When it does, you will want someone to be legally able to speak on your behalf and make medical decisions. By planning ahead, you can increase your ability to control the chance that the medical treatment you receive will be the medical treatment you want.

How can you do that? By appointing a health care agent using a power of attorney for health care.

What kinds of decisions can my health care agent make?

If doctors determine that you are unable to make your own healthcare decisions, or if you do not want to make those decisions yourself, your agent has the ability to take the following actions:

• Talking with doctors and health care providers regarding your condition
• Reviewing medical records and approving who else can see them
• Giving permission for medical tests, medicines, surgery or other treatments
• Choosing where you receive care and which doctors provide it
• Deciding to accept, withdraw or decline treatments designed to keep you alive—subject to certain guidelines you may choose to include on your agent’s authority
• Agreeing or declining to donate your organs
• Talking with other loved ones to help make decisions

How do I choose a health care agent?

Your health care agent must be over the age of 18 and should be someone you know well and trust to carry out your wishes. You should feel comfortable discussing your preferences with them so they can act effectively on your behalf. I recommend you always choose at least two successor agents in the event your first choice is unavailable.

What happens if I do not have a health care agent?

In Illinois, the law directs who your surrogate decision maker would be in the absence of a power of attorney for health care.

What if I do not trust anyone to be my health care agent?

You can talk to your doctor about your wishes and should create written guidance for your doctor to follow in the event decision-making becomes necessary. These directions can also be added to your chart.

Living Will

A living will, or a declaration, is a document in which you declare whether they want to have death-delaying procedures withheld or withdrawn in the event that you have been diagnosed with a terminal condition. Unlike the health care power of attorney, this document only applies if you have a terminal condition.

Durable Powers of Attorney for Property

When your loved one is incapacitated and they need you to go to the bank for them, to pay their mortgage or to keep their financial house in order, it’s likely already too late to put a durable power of attorney for property in place. That’s why it’s important to plan ahead by assigning a durable power of attorney for property: someone who can legally manage property and financial matters on your behalf if you’re unable to do so.

What kinds of decisions can a property power of attorney make?

By appointing an agent with respect to property and financial matters, you are authorizing your agent to pledge, sell or dispose of any of your real or personal property, with or without your consent or any advance notice to you.

How do I choose a property power of attorney?

Follow the same process as choosing a health care agent: your power of attorney must be over the age of 18 and should be someone you know well and trust to carry out your wishes. You should feel comfortable discussing your preferences with them so they can act effectively on your behalf. I recommend you always choose at least two successor agents in the event your first choice is unavailable.

Placing Limits on Powers of Attorney

Both powers of attorney for health care and property allow you to specifically limit the period of time those documents will be in effect and when those documents may be utilized during your lifetime. You can require two doctors to sign off on any determination of incapacity rather than one, which is the default.

What happens if I do not have an agent for property and financial matters?

In Illinois, there is one other way to gain control over an incapacitated loved one’s assets without a power of attorney. You would need to initiate a guardianship in probate court, which is a costly and difficult endeavor. By planning ahead, you can avoid your loved ones being put in this situation.

Health care agents, living wills and power of attorney documents are typically part of a comprehensive estate plan. However, they can be drafted individually if you prefer.

Peace of Mind Starts with a Plan

My dad’s advice about being prepared has shaped more than just my approach to life—it’s shaped my career. Helping clients take important legal steps in preparation for their future ensures values and choices are honored, even in uncertain times. We can take your planning one step at a time, starting with advance directives that offer clarity and peace of mind when it matters most.

I’m accepting new clients for estate planning, probate litigation and family law. If you’d like to meet with me, please request a free consultation online or call (847) 868-9584. I welcome the chance to meet you at our Stern Mendez offices in Evanston, Chicago, Lake Forest or Oak Brook, or a location that’s convenient for you.

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