Estate Planning and Guardianship

Advance Planning is preparatory measures to ensure you and your family are mentally and legally prepared for the last stages of life. This means thinking through what you want preserved most in detail, as well as the conversations you could be having with people close to you. Legally, this also includes Estate and End-of-Life Planning, for which you can plan and execute a series of legal documents tailored to your wishes and best interests. When you have these prepared in advance, you can ensure that your personal values and preferences regarding healthcare, property management, and allocation of assets and estate are respected and carried out.

Illnesses, accidents, or major life events could result in the loss of legal capacity, resulting in inability to make property and health care decisions normally. In order to maximize control over your own standards of living, plans should be made in advance so that all associated legal documents are ready when they’re needed. Therefore, we recommend that individuals over the age of 18, even if perfectly healthy, to consider advance planning.

These plans can help you:

1. Better prepare for unpredictable emergencies or crisis
2. Speak to your family or people you trust about shared decisions, and secure the legality of those decisions
3. Ensure that the quality and satisfaction of care align with your healthcare values, preferences, and priorities
4. Alleviate stress, anxiety, and burden for both you and your loved ones
5. Empower the person(s) you trust to be your legal agent(s) and make decisions for you when needed 

1. Identify a good time and environment. Make sure it is comfortable for all parties involved. It is important to offer a safe space for your loved ones to express their feelings.
2. Use conversation starters: news articles, TV shows, movies, or current events may help.
3. Before jumping into your expectations and goals, start with explaining the purposes and benefits of advance planning.
4. Be prepared with questions you would like to bring to the table for discussion.
5. Be open, gentle, patient and honest throughout the conversation. 6. Anticipate barriers, including misunderstandings, anger, frustration, and the potential need for multiple conversations.

There are many legal documents that can be tailored to your wishes, amongst which these are the most common:

1. Power of Attorney (POA) for Property
2. POA for Healthcare
3. Living Will Declaration
4. Last Will & Testament
5. Transfer on Death Instrument

Please note that this is NOT an all-inclusive list. There are many other legal options that may be more applicable to specific cases. When in doubt, always consider consulting an attorney.

A Power of Attorney for Property is a legal document that allows you to appoint an agent to manage your finances on your behalf. When you are not able to make decisions regarding your money and assets on your own, your chosen agent will have the right to make those choices for you. The POA can be tailored specifically to your needs – you can choose to designate only partial or specific rights to your agent, indicate exact start and end dates for the POA, and other details. Your agent has the power to make decisions regarding your:

• Real Estate and Other Properties
• Bank Accounts (to pay bills)
• Retirement Plans
• Insurance and Annuity Policies
• Taxes
• Stocks and Investments
• Safe Deposit Boxes
• Attorneys
• Business Operations
• Loans and Mortgages
• Inheritance
• Public Benefits

Please note that a POA for Property will NOT replace a Last Will, because the POA document loses effect automatically upon death so it cannot function instead of a Will. In Illinois, POAs for Property must be notarized and signed by 2 witnesses in order to have legal effect. 

A Power of Attorney for Health Care (POAHC) is a legal document that allows you to appoint an agent to make healthcare-related decisions on your behalf. When you are not able to make medical decisions on your own, your chosen agent will have the right to communicate with healthcare providers and make those choices for you. You can also use the POAHC to tell your agent which choices you would like them to make, as well as designate exact start and end dates for the POAHC. Your agent can:

• Talk to your health care providers about your condition
• Access your medical records
• Give permission for medical tests, medicines, surgery or other treatment
• Choose where you receive medical care
• Admit or discharge you from a hospital
• Choose where you live
• Make end-of-life decisions

Please note that a POAHC will NOT replace a Last Will, because the POA document loses effect automatically upon death so it cannot function instead of a Will. In Illinois, POAHCs must be signed by at least 1 witness to have legal effect. Although notarization is optional, it is a good idea to have it notarized because it may be required by other states. 

A Living Will is a personal statement regarding end-of-life care. A Living Will will ONLY take effect when your condition is incurable and irreversible so death is imminent, and no POA for Healthcare was established. For example, you are diagnosed with a terminal illness, or are unconscious due to a serious car accident and no medical procedures can awaken you or prevent you from dying. Your Living Will declaration can direct your doctors to stop all medical treatments, only providing comfort care, such as pain reducers and regular food and water, until natural death. The doctor will provide or terminate medical procedures according to your Living Will, so you must decide whether quality of life or extension of life is more important to you, if you prefer to be at home or at the hospital, etc. You must fill out and sign the form, then discuss with your doctor for documentation in your medical records. 

A Last Will is your method of telling the court how you want your properties and belongings to be distributed after your death, for example: your bank balances, real estate properties, or precious belongings. The Testator (person signing the Will) MUST have legal capacity (cognitive ability and memory) at the time of document drafting and signing, be able to clearly understand all properties and assets, loans, and know how you want them to be allocated.

Benefits of Having a Will:

• Distribute properties and belongings and designate gifts according to your personal preferences
• Avoid familial disputes due to lack of a Will
• You can appoint an Executor
• Choose who will take care of your minor children
• Provide funeral instructions

A Last Will MUST be a physical document in writing. You can choose to draft your own Will or hire an attorney for estate planning to help you draft the document to ensure its legal effect and help you determine the optimal allocation methods. Illinois law does not recognize handwritten Wills. You must sign your will in front of two witnesses, and your witnesses must sign your will in front of you. In Illinois, you do not need to notarize your will for it to have legal effect.

A Transfer on Death Instrument (TODI) is a pre-recorded legal document that keeps real estate property out of your probate estate. It allows you to designate one or multiple beneficiaries to inherit your property. TODI only takes effect after the homeowner’s death, so the document has no effect on your rights during life.

Benefits of Having a TODI:

1. Simple document recording process
2. No impact on homeowner’s rights during life, can be revoked or changed anytime
3. Keeps real estate property out of Probate
4. Save time and money for your beneficiaries: after your death, they can transfer ownership through a simple process

In Illinois, TODI must be notarized and signed by 2 witnesses, then recorded with the county clerk.

A guardian is a person, institution or agency appointed by the Probate Court to manage the affairs of another, called the ward.

The law presumes that an adult eighteen years of age or older is capable of handling his/her/their own affairs. A guardian may be appointed to serve as a substitute decision maker if a person is disabled because of:

• Mental deterioration
• Physical incapacity
• Mental illness
• Developmental disability

This is a great resource for advance directives including information about related laws and rules, forms, and healthcare.

http://dph.illinois.gov/

The Center for Disability and Elder Law provides free legal services for low-to-mid-income elders above age 60 or persons with disabilities within Cook County. Services encompass estate and end-of-life planning – including but not limited to POAs, Living Wills, Last Wills, and TODI. Contact CDEL at (312) 376-1880 or request an appointment through the official website.

http://cdelaw.org/

The NADRC created a series of consumer guides to help people living with dementia and their family members or other care partners know what to plan for and how to get started.

The guides cover 4 topics:

1. Health care planning
2. Financial planning
3. Care planning
4. Supporting someone living with dementia in
   making decisions

http://nadrc.acl.gov/

This is a great free online resource to guide your decision making and initiate a conversation with your family members.

http://theconversationproject.org/