Estate Planning Attorney

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What is a Power Of Attorney?

A power of attorney is a legal document that allows an individual or an agent to sign important paperwork in an event where you are unable to do so yourself. In this scenario, you will be legally known as ‘the principal’ and the individual representing you is known as ‘the agent.’ An agent has the authority to sign any documents – medical or financial, on behalf of the principal in case he/she is incapacitated.

In Illinois, under The Power of Attorney Act, there are primarily three types of power of attorneys: general, limited and special. Each power of attorney has a different use in different situations.

What is Guardianship?

Guardianship is slightly different from the power of attorney. In Illinois, a guardianship is essential for an individual with any type of disability or situation where a person could be incapacitated. A guardian is then appointed as a substitute decision maker if an individual is disabled for any of the following reasons:

  1. Physically incapacitated
  2. Mental illness
  3. Mental deterioration like Alzheimer’s
  4. Developmental disability
  5. Any illness or physical disability that causes a disruption in communication and decision making

A circuit court will decide upon the guardianship of an individual who is 18-years-old or older. A guardian may be appointed by a court if an individual suffers from gambling addiction, idleness, excessive drug usage, debauchery and when an individual overspends.

Difference between Power of Attorney and Guardianship

While no individual wants to be physically or mentally incapacitated, there are certain situations which can lead you to require a power of attorney or guardianship. Let’s take a look at the differences between the two:

  1. A power of attorney allows an individual to designate a dear friend or a relative to take on their financial and medical paperwork. On the other hand, guardianship is assigned by a circuit court to look after medical, real estate or financial aspects of an individual who is incapacitated. You will need an experienced family attorney to help you in attaining power of attorney or guardianship.
  2. Essentially, with a power of attorney in place, an individual will not lose their mental competency and they might be able to carry out some or all of their decisions. While in a guardianship, you will be required to go to a court to determine your mental competency.
  3. When it comes to duty of care, an agent with a power of attorney will handle the affairs in your best interest. On the other hand, a guardian is assigned by the court to act upon major decisions on your behalf. The guardian will not risk personal liability unless there is a blatant disregard for their duties or if the guardian is involved in an illegal act, like money laundering.

If you need a power of attorney, a guardian, or you require assistance in determining any other real estate or family law related matter, schedule a free consultation by contacting Casement Law Group at (847) 888-9300 to speak with an experienced family and real estate lawyer to help understand your rights and obligations.

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