Making Decisions When There is No Power of Attorney

In this article, we will discuss how to make decisions for a loved one when there is no power of attorney.  We will answer questions “what is the power of attorney?”, "Why Should I Have a Power of Attorney in Illinois?", "“Who Makes Decisions When There is No Power of Attorney in Illinois?” and “What Happens to an Estate if there is no Power of Attorney?"

For more information on Estate Planning, see our article “Illinois Estate Planning Explained”.

What is the Power of Attorney in Illinois?

Power of Attorney is a signed document granting power to a person or group to manage your affairs when you unable to do so.  This can be an important decision to avoid legal and financial battles between family members.  This is usually formed prior to any physical or mental injury that may occur which would limit the capacity of an individual’s decision making.  These powers include but are not limited to financial changes, business decisions, and legal claims.

For more on Power of Attorney, see our article “Illinois Power of Attorney Explained”.

Why Should I Have a Power of Attorney in Illinois?

Power of Attorney appoints an agent as a decision maker for your affairs.  This can be a very beneficial decision for you and your family.  It will give you the peace of mind knowing that your affairs are being handled by a trustworthy and knowledgeable individual.  It will also help your family by providing them with a decision making leader whom they can go to with concerns and use as a mediator to avoid potentially stressful family conflict and debates.

Who Makes Decisions When There is No Power of Attorney in Illinois?

If a person is not able to make decisions for themselves and there is no power of attorney established for them, the decision will fall on the family of the person.  This can cause major emotional stress for the family member who is given responsibilities they may not be prepared to make.  This can also cause problems when there is more than one family member called upon to make the decisions.  These family members may disagree on directions to take and decisions to make regarding their loved one.

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If there is a disagreement among loved ones or if certain financial or living decisions are required aguardian will have to be appointed by the court through a guardianship proceeding if there is no pre-existing power of attorney.  For more on this, check out our article, Illinois Adult Guardianship Hearings Explained.

What Happens to an Estate if there is no Power of Attorney?

If a person becomes mentally incompetent, a conservator or guardian of the estate may be appointed through a guardianship proceeding in order to manage the disabled individual's estate, or, in other words, his or her financial affairs. For more on this check out: Illinois Guardianship of the Estate Explained.

Powers of attorney are used to appoint agents with decision-making powers for living individuals with mental or physical disabilities. They lose their efficacy once the creator of the power of attorney passes away. Once an individual passes away, management of the estate lies with the person named as executor in the deceased individual's will or the trustee named in his or her trust.

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For more on probate, see our article “Illinois Probate FAQ”.