Metz + Jones LLC

Are you prepared with a durable power of attorney?

A durable power of attorney can provide broad powers to a trusted agent in the event you suffer some form of incapacity

An estate plan can be many different things to different people. For some, they may believe their will is their “estate plan” and that that is all they need. For others, estate planning has become a sophisticated game, where they have multiple trusts set up to wring the greatest possible tax savings out of their large and varied collection of assets.

Moreover, there is everything in between those two extremes. One thing your estate plan should be is personalized to your family and your specific needs. A part of that estate plan should be a focus on the transfer of your assets to your intended beneficiaries. Another part of the plan should be to deal with less certain, but certainly possible, occurrences while you are still living. This is when a power of attorney for property document becomes vital.

The uncertainty of incapacity

We all have known a relative, friend or acquaintance that made it to a very advanced age in full command of their facilities. At the same time, many of us have known someone who has struggled with the issue of incapacity, maybe with a parent, a spouse or another relative.

A stroke or the advance of some illness such as Alzheimer’s disease has robbed them of a once vibrant intellect or personality. As the disease progresses, they may lose the ability to assist in their own care or affairs. Yet they may live many years in this condition.

That individual’s spouse or family members may be faced with the unpleasant, expensive and time-consuming task of going to court and having the person declared incompetent, in order to have a guardian appointed to look after the person’s affairs.

Durable power of attorney

A comprehensive estate plan can help avoid this uncomfortable legal step by putting in place a durable power of attorney. This document provides legal authority to a partner, spouse, adult child, or trusted friend, who would then be able to ensure that bills are paid and other aspects of the incapacitated person’s affairs are taken care of properly.

It is known as a durable power of attorney precisely because it survives any incapacity of the grantor or person creating and signing the document. A normal power of attorney typically expires if the grantor becomes incapacitated, as could occur with a stroke or from a traumatic brain injury from a car accident.

Illinois has updated its Power of Attorney statute to make it easier to understand for both the person granting the power and the “agent” who receives the power. It makes clear the duties and responsibilities of the agent. Powers of attorney for property come in different varieties. They may be all encompassing or specifically tailored such as for the sale of real estate or running a business.

You will want to discuss all of these issues with your estate planning attorney and they will help you determine the type of durable power of attorney that you need as part of your estate plan.