Defining Incapacitation With Regard to Estate Planning

 Posted on July 25,2019 in Estate Planning

While many people assume estate planning only involves drafting a will or other estate planning document which dictates how assets are distributed upon an individual’s death, this is only one of many types of estate planning instruments which can benefit you. An advance directive, also referred to as a living will, medical directive, or advance decision, is a type of legal document which specifies how decisions should be made on behalf of an individual who is incapacitated by illness or injury. Read on to learn about how incapacity is defined for the purposes of these types of decisions in Illinois.

An Incapacitating Accident or Illness Can Happen to Anybody

If you are like most people, you have probably not given a lot of thought as to what would happen if you became unable to speak for yourself. Although we often think of incapacitation as something that happens to elderly people or those with Alzheimer’s Disease, the truth is that people of all ages can become incapacitated. For example, if you are in a serious car accident, you could suffer a head injury which leaves you in a coma. Who would make medical decisions on your behalf if this happened? Would you wish to be kept alive via artificial life support if there was little chance of recovery? These are the types of questions which can be addressed through an advance directive.

When Do Advanced Directives Take Effect?

There is not a specific set of criteria which is always used to determine when a person is incapacitated in Illinois. The situation will vary significantly based on the unique circumstances of the sick or injured person and his or her loved ones. If you are unable to speak for yourself and a loved one has petitioned the court to become your legal guardian, a judge will decide whether or not you are disabled to the point that you require a guardian. The Illinois Probate Act states that a disabled person is one who:

• Is incapable of managing his or her own person or estate due to mental decline or physical incapacity;
• Has a developmental disability or mental illness which makes them unable to manage his or her own affairs; or
• Is incapacitated by excessive drug use, gambling, or other addictions or personal problems.

If the question of incapacitation is related to a durable power of attorney, a person is considered incapacitated and unable to make decisions for himself or herself if:

• A licensed physician examines the individual and finds that he or she lacks decision-making capacity;
• The physician makes a written, signed record of this determination; and
• The record has been delivered to the health care representative or agent named in the disabled person’s estate plans.

Contact a Lombard, Illinois Advance Directive Attorney

To learn more about powers of attorney, living wills, or other estate planning instruments, contact A. Traub & Associates. Schedule a consultation with an experienced Arlington Heights estate planning lawyer by calling us at 630-426-0196 today.

Sources:

http://ilga.gov/legislation/ilcs/ilcs5.asp?ActID=2104

https://www.mayoclinic.org/healthy-lifestyle/consumer-health/in-depth/living-wills/art-20046303