• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer
  • Home
  • Our Firm
    • About Our Firm
    • Attorney and Staff Profiles
    • Communities We Serve
      • Cook County
        • Barrington
        • Glenview
        • Northbrook
        • Skokie
      • Lake County
        • Gurnee
        • Lincolnshire
        • Riverwoods
        • Vernon Hills
        • Waukegan
  • Services
    • Asset Protection & Business Planning
    • Estate and Gift Tax Figures
    • Estate Planning Services
    • Family-Owned Businesses & Farms
    • Financial Planning Assistance
    • Incapacity Planning
    • IRA & Retirement Planning
    • Legacy Planning
    • LGBTQ Estate Planning
    • Pet Planning
    • SECURE Act
    • Special Needs Planning
    • Trust Administration & Probate
  • Resources
    • Client Resources
      • Free Seminars
      • Estate and Gift Tax Figures
      • Free Estate Planning Worksheet
      • Is Your Estate Plan Outdated?
      • Probate Resources
        • Glenview Probate
        • Lake Forest Probate
        • Lincolnshire Probate
        • Northbrook Probate
        • Vernon Hills Probate
        • Waukegan Probate
    • Frequently Asked Questions
      • Asset Protection
      • Business Succession Planning
      • Estate Planning
      • Families Without an Estate Plan
      • Financial Planning Assistance
      • Legacy Wealth Planning
      • LGBTQ Estate Planning
      • Probate
      • Trust Administration & Probate
      • Trusts
    • Legacy Wealth Planning
    • Published Books
    • Reports
      • Advanced Estate Planning
      • Basic Estate Planning
      • Estate Planning for Niches
      • Trust Administration
  • BLOG
  • Contact Us
  • Review Us

Hedeker Law

Illinois Estate Planning Attorneys

Connect with us today(847) 913-5415

Attend a Free Seminar
Home / Incapacity Planning / Who Can Make the Decision Whether Someone Is Incapacitated in Illinois?

Who Can Make the Decision Whether Someone Is Incapacitated in Illinois?

June 13, 2019Incapacity Planning

Waukegan incapacity planning attorneysLike most people, you probably focus on the disposition of your estate assets following your death when you contemplate your estate plan. Planning for after you are gone is certainly one important aspect of estate planning; however, it is not the only reason to have an estate plan in place. In fact, planning for the possibility that you will become incapacitated is equally as important. To help you plan for the possibility of your own incapacity, the Waukegan incapacity planning attorneys at Hedeker Law, Ltd. explain how incapacity is defined and who can make the decision whether you are incapacitated in Illinois.

Incapacity Is Not Limited to the Elderly

All too often, when people think about the possibility of becoming incapacitated they immediately associate that possibility with old age. While the natural aging process itself, helped along by conditions such as Alzheimer’s disease, can result in incapacity, you don’t have to be a senior to end up incapacitated.  On the contrary, incapacity can strike anyone at any age as a result of a workplace injury, a serious illness, or even a car crash. To help you understand the need to plan for the possibility of your own incapacity, consider the following facts and figures:

  • Just over 1 in 4 of today’s 20 year-olds will become disabled before they retire
  • In December of 2012, there were over 2.5 million disabled workers in their 20s, 30s, and 40s receiving SSDI benefits.
  • A typical 35-year-old has a 24% chance of becoming disabled for 3 months or longer during his/her working career.
  • Moreover, that same worker has a 38% chance that the disability would last 5 years or longer, with the average disability for someone like him/her lasting 82 months
  • Stroke is a leading cause of long-term disability
  • 34% of people hospitalized in 2009 for stroke were younger than 65 years of age

How Is Incapacity Defined in Illinois and Who Makes the Decision that You Meet that Definition?

Because the issue of your incapacity could come up under several different circumstances, there is not a “one size fits all” definition of incapacity. Likewise, the circumstances under which the question of your incapacity arise will determine who decides if you are incapacitated.

For example, if someone has petitioned to become your legal guardian, the Illinois Probate Act governs the proceedings. In the Probate Act, the petitioner must convince the probate judge that the proposed ward is “disabled” for a guardian to be appointed. As such, it is a judge who makes the determination of incapacity. Section 11a-2 of the Act defines a person with a disability (or “a disabled person”) a person 18 years or older who:

  • because of mental deterioration or physical incapacity is not fully able to manage his or her person or estate OR
  • is a person with mental illness or developmental disability and who because of mental illness or developmental disability is not fully able to manage his or her person or estate OR
  • because of gambling, idleness, debauchery or excessive use of intoxicants or drugs, so spends or wastes his or her estate as to expose the person with disability or dependents to want or suffering.

If the issue of incapacity arises in the context of the Agent’s authority under a durable power of attorney, the Illinois Power of Attorney Act governs the definition of incapacity. That Act defines incapacitated as follows:

“Incapacitated”, when used to describe a principal, means that the principal is under a legal disability as defined in Section 11a-2 of the Probate Act of 1975. A principal shall also be considered incapacitated if: (i) a physician licensed to practice medicine in all of its branches has examined the principal and has determined that the principal lacks decision-making capacity; (ii) that physician has made a written record of this determination and has signed the written record within 90 days after the examination; and (iii) the written record has been delivered to the agent. The agent may rely conclusively on the written record.

In the case of a durable power of attorney, it could be a judge or a physician who makes the determination of incapacity.

Finally, the definition of incapacitated is also relevant when discussing the use of an advance directive. Specifically, the Illinois Short Form Power of Attorney for Health Care allows you to appoint an Agent to make health care decisions for you if you are unable to make them yourself. Your Agent’s authority begins when a doctor determines that you are “no longer able to make or communicate your health care decisions.” In this case, therefore, is a doctor who decides whether you are incapacitated.

Contact a Waukegan Incapacity Planning Attorney

For more information, please join us for a FREE estate planning seminar. If you have additional questions or concerns regarding the definition of incapacitated in Illinois, contact the experienced Waukegan incapacity planning attorneys at Hedeker Law, Ltd. by calling (847) 913-5415 to schedule an appointment.

 

  • Author
  • Recent Posts
Dean R. Hedeker
Dean R. Hedeker
Dean Hedeker is a leading Chicago-area authority on estate and tax planning, business law and investments. A long-time resident of north suburban Lincolnshire, Dean has more than 35-years experience helping business owners and families grow, protect and pass on their hard-earned money through tax planning, estate planning and investment management services.
Dean R. Hedeker
Latest posts by Dean R. Hedeker (see all)
  • How Can I Terminate a Living Trust? - September 24, 2019
  • Is an AB Trust Right for My Estate Plan? - September 12, 2019
  • How Can I Include Philanthropy in My Estate Plan? - September 4, 2019

Other Articles You May Find Useful

incapacity
Are There Alternatives for Managing Property When a Person Becomes Incapacitated?
Lincolnshire living trust lawyers
How Lincolnshire Living Trust Lawyers Can Help with Incapacity Planning

Primary Sidebar

FREE ESTATE PLANNING WORKSHEET

There's a lot that goes into setting up a comprehensive estate plan, but with our FREE worksheet, you'll be one step closer to getting yourself and your family on the path to a secure and happy future.

  • This field is for validation purposes and should be left unchanged.

Follow Us

  • Facebook
  • twitter
  • link
  • youtube

Testimonials

Client Review
September 8, 2020
    

Dean's knowledge is very comprehensive and current. He not only sees and understands the particular question but he puts it in the context my particular matter and to the overall business and tax environment. Dean has been my attorney for many (over 20) years. I am also an attorney but I would never make a tax, business or financial decision without his extraordinary advice and counsel.

default image
Raymond

Where We Are

LINCOLNSHIRE
1 Overlook Point, Suite 610,
Lincolnshire, IL 60069
Phone: (847) 913-5415

See Larger Map Get Directions

Blog Subscription

  • This field is for validation purposes and should be left unchanged.

Office Hours

Monday8:00 AM - 5:00 PM
Tuesday8:00 AM - 5:00 PM
Wednesday8:00 AM - 5:00 PM
Thursday8:00 AM - 5:00 PM
Friday8:00 AM - 5:00 PM

Map

hedeker_sidbr_map

Footer

  • Advantages of Working With Our Firm
  • About The American Academy
  • Privacy Policy
  • Disclaimer
  • Sitemap
  • Contact Us

Connect with Us

  • Facebook
  • twitter
  • link
  • youtube
footer-logo

Hedeker Law Ltd.
All Right Reseved.

Attorney Advertisement

© 2023 American Academy of Estate Planning Attorneys, Inc.