Most people think Estate Planning just means clarifying how you want your property to be distributed after you die, but there's far more to it under Illinois law.

What happens when you become legally incapacitated in Illinois?

Who pays your bills, arranges for your medical care, takes temporary (or more long term) custody of your children? How about your pets? Will that person have access to your medical records even though access is restricted by federal law under HIPAA? 

These are all questions that an Illinois Estate Plan should address at a minimum, and of course the attorneys at Fagan, Fagan & Davis can help and you should contact us now if you don't have a plan in place. Meanwhile this raises a great question - just what does "legally incapacitated" mean?

Legal Incapacity is defined by Illinois law at 755 ILCS 45/2-3(c-5) as "a person with a disability" and under the probate act at 755 ILCS 5/11a-2 uses the legal definition of a "person with a disability". The statute defines that as:

a person 18 years or older who (a) because of mental deterioration or physical incapacity is not fully able to manage his person or estate, or (b) is a person with mental illness or a person with a developmental disability and who because of his mental illness or developmental disability is not fully able to manage his person or estate, or (c) because of gambling, idleness, debauchery, or excessive use of intoxicants or drugs, so spends or wastes his estate as to expose himself or his family to want or suffering, or (d) is diagnosed with fetal alcohol syndrome or fetal alcohol effects.

In addition, the statute also provides that a physician can determine incapacity if:

(i) a physician licensed to practice medicine in all of its branches has examined the principal and has determined that the principal lacks decision making capacity;

If that seems broad, it is, and while it certainly isn't a thing treated lightly in Illinois courts, there is a way to plan for the possibility of incapacity by use of a Statutory Power of Attorney as set out in yet another law, the Illinois Short Form Power of Attorney for Health Care Act found at 755 ILCS 45. This law lets you plan ahead, and choose who will be able to make decisions for you if you become legally incapacitated and are unable to make important decisions for yourself, including medical decisions. 

Additionally, you can choose what type of POA (power of attorney) you want to create and give some guidance as to your wishes. You can create what are called durable powers, or "springing" powers that become effective only when you are ruled incapacitated. You can choose who will have that power, and who will serve as a backup if they can't. In short, you can take control back over what happens rather than leaving it up to a Court, who may not know your preferences, and an experienced attorney can help guide you through this essential part of any estate plan.

Call or text us now at 847-635-8200 to schedule your Peace of Mind Planning session so that you can ensure you won't be worrying about matters like these if an emergency strikes you or your family.