Avoiding Guardianship with Springing Powers of Attorney

 Posted on February 21, 2025 in Estate Planning

No matter how well you take care of your health, there is still a very strong chance that you could become incapacitated towards the end of your life. Most people who live well into old age begin to experience cognitive decline and need someone else’s help managing their legal, medical, and financial affairs. If you become incapacitated and you do not have powers of attorney naming the person or people you would want to take on these tasks for you, someone will likely need to initiate formal guardianship proceedings. Your family members cannot simply take control of your finances or medical decision-making without a court's permission. You can avoid the need for invasive guardianship proceedings by executing the right powers of attorney. With a springing power of attorney, the agent or agents you name can begin managing your affairs right away when it is determined that you are incapacitated. An experienced Chicago, IL estate planning lawyer can help ensure that you have the right powers of attorney in place.

Why Should I Avoid Guardianship Proceedings? 

Guardianship proceedings are a matter of public record and can result in a significant loss of privacy. While courts do try hard to preserve the dignity of elders who are subjected to guardianship proceedings, the process can be very upsetting for both the ward and his or her family members. Evidence of your incapacity will need to be introduced, which means that your medical privacy can be compromised. Additionally, guardians are required to file reports each year that can reveal a lot about your property, living conditions, and personal life.

What is a Springing Power of Attorney? 

A springing POA is a type of POA that has no legal effect until you are formally deemed incapacitated. This means that your agent has no authority to act on your behalf so long as you have the capacity to manage your own affairs. When you become incapacitated, your POA goes into effect automatically, and your agent can take over the responsibilities you have allocated to him without waiting for a court to act. Your POA is private under most circumstances.

How is Incapacity Determined? 

A doctor will need to examine you to determine whether you have become incapacitated. If your doctor feels that you are still capable of making important medical, personal, and financial decisions for yourself, your POA will not go into effect. If your doctor believes that you can no longer manage your own affairs, he or she must notify your agent promptly. Upon receiving a letter from your doctor stating that you are incapacitated, your agent can begin exercising the decision-making duties you assigned to him or her in your POA.

Contact a Chicago, IL Powers of Attorney Lawyer 

The Sherrod Law Firm, Ltd. will strategically structure your powers of attorney to help avoid the need for guardianship. Our dedicated Cook County, IL elder law attorneys will do all we can to facilitate a smooth and private transition should you become incapacitated later in life. Contact us at 312-321-6910 for a complimentary consultation.