DO I NEED A POWER OF ATTORNEY OR GUARDIANSHIP
If you have an aging parent or disabled child who you believe needs your assistance with finances Illinois law offers some options to you. The power of attorney form authorizes another person to act on that person’s agent and act on their behalf in financial matters. There are various rules and restrictions that can be found in more detail in the Illinois Power of Attorney Act, 755 ILCS 5. The power of attorney and guardianship options each have certain benefits and drawbacks. The power of attorney can be executed quickly without the need of starting a court case and the delays and costs that come with a court case. There is also no court supervision for a power of attorney that comes with a guardianship that will continue during the term of the guardianship and require annual reporting to the court. The power of attorney also has the benefit of being private and there is no public record made concerning the medical issues of the person executing the power of attorney.
There are, however, some downsides to the power of attorney. The power of attorney can be executed at any time by the person as long as the person has the legal capacity to make the decision to designate an agent. If you are concerned about erratic or irrational behavior by your aging parent or disabled child, letting them choose the person to act as their agent may be concerning, and there is a risk that they may choose someone who will not act in their best interests. Even if you are appointed as the power of attorney agent another drawback is that the person can vacate the power of attorney at any time. If disputes arise about finances and the person does not like what you are telling them, they can easily revoke the power of attorney with a standard form and appoint someone else. Another scenario that can present problems is when the person has executed a power of attorney and subsequently loses the ability to make further decisions concerning their agent, such as for example due to dementia. Although you can still be appointed as a guardian for the person, unless and until the person’s health improves to the point that they can again legally make decisions regarding an agent, the power of attorney agent will continue to make decisions concerning finances instead of the guardian. If the person is not going to improve, the power of attorney agent will effectively be permanently appointed. The guardianship although monitored by the Court will also give you more comprehensive and recognized authority over the individual’s finances. It is important to weigh the above factors in choosing between a power of attorney and guardianship and act promptly and decisively to protect the interests of your loved one.