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Planning for Incapacity

What is a Durable Power of Attorney?

Who can establish a Power of Attorney?

Who may act as an agent under a Power of Attorney?

What is a Durable Power of Attorney for Health Care?

What is a Living Will?

What is a HIPAA Authorization?





Q: What is a Durable Power of Attorney?

A Durable Power of Attorney is a document that empowers another individual to carry on your financial affairs in the event you become disabled or incapacitated.  The person to whom you grant such power is called your “agent” or your “attorney-in-fact.”  Without a Durable Power of Attorney, it may be necessary for one of your loved ones, including your spouse or adult child, to petition a court to be appointed guardian or conservator in order to make decisions for you when you are incapacitated.  This guardianship process is time consuming and expensive, often costing thousands of dollars.  Worse, it can be emotionally draining for your family and loved ones.

There are generally two types of durable powers of attorney: a present Durable Power of Attorney in which the power is immediately effective for your attorney-in-fact; and a springing or future Durable Power of Attorney that only comes into effect upon your subsequent disability as determined by your doctor, or other triggering event that you might prefer to include.


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Q: Who can establish a Power of Attorney?

Generally, any individual over the age of majority and who is legally competent can establish a Power of Attorney.
 


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Q: Who may act as an agent under a Power of Attorney?

In general, an agent, or attorney-in-fact, may be anyone who is legally competent and over the age of majority.  Most individuals select a close family member such as a spouse, sibling or adult child.  However, any person—such as a friend or a professional—with an outstanding reputation for honesty would be ideal.  You may appoint multiple agents to serve either simultaneously or separately.  Appointing more than one agent to serve simultaneously can be problematic because if any one of the agents is unavailable to sign, action may be delayed.  Confusion and disagreement between simultaneous agents can also lead to inaction.  Therefore, it is usually more prudent to appoint one individual as the primary agent and nominate additional individuals to serve as alternate agents if your first choice is unwilling or unable to serve.


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Q: What is a Durable Power of Attorney for Health Care?

The law allows you to appoint someone to decide about medical treatment options if you lose the ability to decide for yourself.  You can do this by using a "Power of Attorney for Health Care" where you designate the person or persons to make such decisions on your behalf. You can allow your health care agent to decide about all health care or only about certain treatments.  You may also give your agent instructions that he or she has to follow.  Your agent can then make sure that health care professionals follow your wishes and can decide how your wishes apply as your medical condition changes.  Hospitals, doctors and other health care providers must follow your agent's decisions as if they were your own.


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Q: What is a Living Will?

A Living Will is your “right to die” document and informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding end-of-life treatment.  In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the event of future incapacity.


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Q: What is a HIPAA Authorization?

Some medical providers have refused to release information, even to spouses and adult children authorized by the Healthcare Power of Attorney on the grounds that the 1996 Health Insurance Portability and Accountability Act, or “HIPAA,” prohibits such releases.   Therefore, as part of your incapacity planning, you should sign a HIPAA authorization form that allows the release of medical information to your agents, successor trustees, family or any other individuals you wish to designate as persons authorized to receive your medical information.


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Law Office of Judith A. Schening, LLC is located in South Elgin, IL and serves clients throughout Kane, DuPage, DeKalb and Cook Counties and the surrounding areas.



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107 S. McLean Blvd, South Elgin, IL 60177
| Phone: 630-453-8884

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