Like 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.
Dean R. Hedeker
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