Chicago Powers of Attorney Lawyer

For an estate plan to be complete, it must contain documents that deal with a situation that we hope never arises - incapacity.  While many of us are leading longer lives, some of us are not necessarily leading better lives.  Many people need help with financial and health care matters before passing.  Fortunately, a comprehensive estate plan can deal with issues that may arise before and after death.

A Power of Attorney has nothing to do with lawyers.  It is a power of agency.  With a power of attorney you appoint the person who will be your representative if you reach a point in life when you can no longer perform day to day functions. A power of attorney dies when you die.  It is ineffective after death.

There are two powers of attorney, one for property and one for health care.

The Durable Power of Attorney for Property allows you to appoint the people who will handle financial matters for you if you can no longer handle such matters yourself. A Trust has a successor Trustee, and it is the successor Trustee who will handle Trust related assets, such as real property. But not all assets can be placed into a Trust.  In particular, retirement plans cannot be titled in the name of a Trust.  If your successor Trustee goes to a financial institution, identifies themself as the successor Trustee of your Trust, and asks to take funds from your IRA or 401(k) plan to pay for medical expenses, the financial institution will refuse to make the distribution.  Since the IRA or 401(k) is not (and cannot) be owned by the Trust, the successor Trustee has no authority to request such a distribution.  However, the agent under your Durable Power of Attorney for Property does have the authority to make such a withdrawal.  The idea is that by having both documents - a Trust and a Durable Power of Attorney - you will have designated someone who will have the authority to handle virtually any property or asset matter, whether Trust related or not.

The Health Care Power of Attorney does two things.  First, it allows you to designate the people who will be your representative to the medical community if you can no longer communicate.  As long as you can communicate, you are your own representative.  However, if you can no longer communicate, your representative is empowered to act on your behalf.  Second, through elections you make when you execute the document, you will be telling your agent what you want them to know regarding your choices concerning organ donation and life support.  Your agent's job is not to try to figure out what your wishes are, but rather to take your wishes as expressed in the document and make sure that those wishes are carried out.