When is an Illinois Guardianship necessary vs. Powers of Attorney?

In Illinois, there are two kinds of Powers of Attorney: a Power of Attorney for Health Care and a Power of Attorney for Property. A durable Health Care Power of Attorney allows an individual to appoint an Agent to make health care decisions on his/her behalf even when the individual becomes mentally incapacitated. A durable Property Power of Attorney allows an individual to appoint an Agent to make financial and property decisions on his/her behalf even when the individual becomes mentally incapacitated.

In the event that an individual becomes mentally incapacitated without valid Powers of Attorney in place, an Illinois Guardianship will be needed to protect the disabled person. A Guardianship of the Person mimics a Power of Attorney for Health Care, and a Guardianship of the Estate mimics a Power of Attorney for Property. Essentially, if an individual fails to name an Agent to act on his/her behalf prior to becoming mentally incapacitated, a Guardianship Court will name a representative for him/her.

Can a mentally incompetent person execute a Power of Attorney in Illinois?

While some attorneys (and much of the general public) believe that anyone can execute (make and sign) a Power of Attorney at any time, the person making the Power of Attorney must have the mental capacity to understand what he/she is signing. Thus, if someone is in a coma, has moderate-to-severe dementia, or has been severely mentally handicapped since birth, then that individual would not be able to execute a valid Power of Attorney in Illinois. Even though some family members (particularly the ones who stand to gain the most) have forced a mentally incompetent loved one to sign a Power of Attorney document, that Power of Attorney is technically not valid. In these instances, an Illinois Guardianship would be necessary to protect the disabled person.

What are the pros and cons of Illinois Guardianships vs. Illinois Powers of Attorney?

Many attorneys promote the myth that Guardianship is a bad process, and Powers of Attorney are the ultimate cure. While Powers of Attorney do have their place in certain situations, they are not always the best option. Let’s take a look at some pros and cons of Illinois Guardianships vs. Illinois Powers of Attorney.

Illinois Guardianships

With regard to cons in Illinois Guardianships, they can be much more expensive to set up and maintain over the years versus Powers of Attorney. They also require stricter procedures and court oversight in their administration.

However, in looking at the pros of Guardianships, they provide a much higher level of protection for the disabled person. The Guardian’s actions are consistently overseen by the Guardianship judge, and interested parties receive regular notices regarding the Guardianship. Guardianships also carry more authority with hospitals, financial institutions, etc., as they are validated by a court system.

Illinois Powers of Attorney

With regard to the cons with Illinois Powers of Attorney, they provide very little protection to the disabled person as they can be secretly executed, changed, and used/abused. Family members oftentimes will secure competing Powers of Attorney to attempt to manipulate a wealthy relative. If financial accounts are mishandled or abused by an Agent under a Power of Attorney, the funds that are lost can be difficult to trace and recover.

However, in looking at the pros of Powers of Attorney, they can be a very useful tool if properly executed prior to a person becoming mentally incompetent. They do not have anywhere near the same kinds of ongoing expenses related to their use, and they require very little oversight by any other parties. If the Agent named under a Power of Attorney is good, the Power of Attorney can be very effective. If the named Agent is unscrupulous, however, a Power of Attorney can become a nightmare for the disabled person and any interested parties related to the situation. Thus, Powers of Attorney should be executed and used with caution.

Who makes decisions when there is a valid Agent under a Power of Attorney and a court-appointed Guardian in Illinois?

When there is a valid Power of Attorney and a valid Guardianship in place for a disabled person in Illinois, the Power of Attorney technically trumps the Guardianship. Thus, the named Agent under the Power of Attorney for Health Care has the authority to overrule the Guardian of the Person appointed by the Court. Under 755 ILCS 5/11a-17(c), it states:

(c) Absent court order pursuant to the Illinois Power of Attorney Act directing a guardian to exercise powers of the principal under an agency that survives disability, the guardian has no power, duty, or liability with respect to any personal or health care matters covered by the agency.

And the named Agent under the Power of Attorney for Property has the authority to overrule the Guardian of the Estate. Under 755 ILCS 5/11a-18(e), it states:

(e) Absent court order pursuant to the Illinois Power of Attorney Act directing a guardian to exercise powers of the principal under an agency that survives disability, the guardian will have no power, duty or liability with respect to any property subject to the agency.

Therefore, the named Agent under a Power of Attorney for Health Care and Property trumps the court-appointed Guardian in a Guardianship estate in Illinois.

Contact our Firm

Our firm has helped many Guardians with routine and complicated Guardianship estates across the Chicagoland area, including in Kane, DuPage, Will, Kendall, and Cook Counties. If you have questions regarding a Guardianship matter, complete the form below to set up a free initial consultation today!

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