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Why Power of Attorney Is Vital to Your Estate PlanYour estate plan mostly concerns instructions for what to do following your death, but there are parts of the plan that can apply while you are still alive. You may lose the ability to make sound decisions for yourself if you are suffering from a cognitive illness such as dementia or are incapacitated due to a health emergency. Who will consent to medical treatment that may help you but also carries risks? Who will manage your properties, including making sure that your bills are paid? You can assign the power of attorney as part of your estate plan to determine who is allowed to make these decisions.

What Is the Power of Attorney?

The power of attorney is a legal document that names a person or persons who will have the authority to make decisions on your behalf if you are incapacitated. There are two types of power of attorney in Illinois:

  • The property power of attorney is the authority to make financial decisions.
  • The health care power of attorney is the authority to make health-related decisions.

You can place limits or add instructions to your power of attorney if you do not want another person to have complete discretion when making decisions while you are incapacitated. For instance, a “do not resuscitate” order could instruct whether you should be removed from life support if you are unlikely to regain consciousness. You can also choose which transactions someone is allowed to make for you.

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Posted on in Divorce

Updating Your Estate Plan After DivorceA divorce changes not only your life but plans you made in the event of your death. You likely named your former spouse as the primary beneficiary or caretaker in your estate planning documents. Once your divorce is final, Illinois law should assume that you no longer intend for your former spouse to receive most of your assets in a will or trust or be responsible for making decisions for you if you are incapacitated. However, you need to update these documents to make your intentions clear to your family:

  1. Wills: In a will, you name the beneficiaries who will receive your assets upon your death. After your divorce, the will treats any inclusion of your former spouse as though he or she has already died. However, your divorce can make your will essentially useless if your former spouse is the only beneficiary named. You should update your will to name new beneficiaries, such as your children, other relatives, or a charitable organization.
  2. Trusts: A trust differs from a will because you place assets in a trust while you are alive. The trustee will distribute those assets to your designated beneficiaries. One of the main benefits of a trust is that it allows your beneficiaries to receive those properties without having to go through probate. Assuming that you have a revocable trust, you can change who will receive the assets that would have gone to your former spouse or remove the assets from the trust.
  3. Power of Attorney: If you become incapacitated or unable to make your own decisions, a power of attorney allows someone else to make decisions on your behalf. A power of attorney for financial lets that person make monetary decisions, while a power of attorney for health care lets that person make decisions regarding your medical treatment. Though your former spouse will no longer have these powers, you need to update these documents to state who you want making these decisions for you.
  4. Child Guardianship: The normal presumption is that one parent will assume complete parental responsibilities for the children if the other parent dies. However, your former spouse may have limited or no parental rights if he or she is a danger to your children. In such a case, you need to name another adult who would be the legal guardian of your children upon your death.

Contact a McHenry County Divorce Attorney

Updating your estate planning documents can be a complicated process. A Crystal Lake, Illinois, divorce attorney at Botto Gilbert Lancaster, PC, can help you examine your documents and decide which changes you want to make. Schedule a free consultation by calling 815-338-3838.

Source:

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Illinois State Bar Association State Bar of Wisconsin Crystal Lake Chamber of Commerce Illinois Trial Lawyers Association McHenry County Bar Association
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