Caring for a Parent or Spouse? Get the Power of Attorney in Place First
November is National Family Caregivers Month, and many families in central Illinois are already living it. A parent is slowing down, a spouse is dealing with a diagnosis, and someone in the family has quietly taken over the driving, the appointments, and the bill paying. What many of them do not have is any legal authority to do those things. If the person being cared for cannot speak for themselves tomorrow, the paperwork either exists or it does not.
The most important documents for a caregiving family are two powers of attorney. Here is how they work and what to get right.
Two documents, two different jobs
A power of attorney for property lets someone you choose, called your agent, handle your finances: paying bills, managing bank accounts, filing taxes, dealing with real estate and farm or business matters. A power of attorney for health care lets your agent make medical decisions and talk with your doctors if you cannot. Illinois treats these as separate documents, and you can name the same person for both or different people.
What this means for you: A parent who has only one of the two has a gap. Check that both exist.
Signing it correctly
An Illinois power of attorney for property is not effective unless it is signed by at least one witness and the principal’s signature is notarized. The notary cannot also serve as the witness, and the witness cannot be the agent or a successor agent. Unless the document says otherwise, it takes effect when it is signed. It can be written to begin only on incapacity, but that choice has to be set out clearly.
A power of attorney for health care using the statutory form needs one adult witness. The agent and any successor agent cannot witness, and neither can a relative of the person signing, the agent or a successor agent, or the person’s own physician or other treating provider. Notarization is not required for the health care form.
What this means for you: A signature alone is not enough. Mistakes with witnesses and notaries are common, and they are easy to avoid when the signing is done correctly the first time.
Choosing an agent, and a backup
The best agent is not always the oldest child or the one who lives closest. Look for someone who is organized, honest, and willing to keep records. Under Illinois’s statutory form, an agent has a duty to act in good faith for the principal’s benefit and to keep a record of receipts, disbursements, and significant actions. The form lets you name successor agents who step in if the first agent cannot serve, but it does not allow co-agents acting at the same time.
What this means for you: Name at least one successor. Then tell the people you have chosen, and tell the rest of the family, so no one is surprised.
A change that helps your agent
A change to the Illinois Power of Attorney Act that took effect January 1, 2025 lets banks, hospitals, and other institutions ask an agent to sign a certification that the document is a true copy, that the person who signed it had capacity, that the person is alive, and that the power has not been revoked. It also limits the reasons an institution can give for refusing a power of attorney. For example, an institution generally cannot turn one down just because it is not on the institution’s own form. An institution can still refuse in some situations, such as when the agent will not provide the certification or when fraud or abuse is suspected.
What this means for you: Having a certification prepared along with your power of attorney can save an agent valuable time in an emergency.
What happens without one
Without a power of attorney for property, a spouse or child does not automatically gain authority over accounts held only in another person’s name. The usual remedy is a guardianship case in court, which takes time and money, is public, and gives a judge a say in who is appointed. For health care, Illinois law sets a default list of decision makers for end of life medical decisions, generally starting with a guardian and then a spouse, adult children, parents, and siblings. That list may not match what the person would have chosen, and it does nothing about finances.
What this means for you: The time to sign is while the person is well and clearly understands what they are signing. If you wait for a crisis, the options narrow quickly.
Talk with us before you need to
If you are caring for someone now, or you want to make sure your own plan is in place, we can help you put the right documents together and make sure they are signed correctly. Call our Mackinaw office at 309-359-3461 or our Morton office at 309-266-6211, or reach us at email@mcgrathpc.com.
