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Estate Planning Resources FAQs

ANSWERS TO ESTATE PLANNING QUESTIONS

What exactly is a will?

A will is a legal document that controls what happens to your property after you die. To have a valid will in Illinois, you must be 18 years old, be of sound mind, it must be in writing and signed by the person making the will, and it must be witnessed in a certain way by at least two witnesses who are not beneficiaries.

What happens if I die without a will?

The only way to be sure your property is distributed the way you want it to be after you die, is to have a valid and properly executed will. If you do not have a will when you die (called 'intestate'), then your assets are distributed to your relatives according to state law - called the law of intestate succession. Click here to read the Illinois statute. Generally speaking, in Illinois the law says that if you are married and have children, your spouse gets half of your property and your children share the other half. If you have a spouse and no children, your spouse gets everything and if you have children but no spouse, your children inherit equal shares of your property. If you have no spouse or children, your property goes to your parents and your siblings in equal shares.

I wrote a letter that has instructions about what to do with my property when I die, isn't that good enough?

No, in Illinois a written list of instructions are not a will, even if you write it out by hand and sign it. Your assets will be distributed according to the laws of intestate succession, as described above.

If I have no will, who decides what happens to my minor children?

Making a decision about who would take care of your minor children in the event you and your spouse both die is one of the most important estate planning If both parents are deceased, the court will appoint a guardian for your minor children. This could be a relative or it could be someone else the court feels is better qualified to be the legal representative of your children.

What is an Advance Directive for Health Care?

An advance directive is a written statement you prepare that expresses how you want medical decisions made in the future should you not be able to make them yourself.

Illinois law allows a person age 18 or older to make four types of advance directives: a health care power of attorney; a living will; a mental health treatment preference declaration, and a Do-Not-Resuscitate/Practitioner Orders For Life-Sustaining Treatment (DNR/POLST).

Federal law requires that you be told of your right to make an advance directive when you are admitted to a health care facility, and the Patient Self-Determination Act requires certain providers participating in the Medicare and Medicaid programs to furnish patients with information on advance directives. The information is to be given to patients upon admission to a facility or when provision of care begins. Providers covered by this requirement include hospitals, nursing facilities, providers of home health or personal care services, hospice programs and health maintenance organizations.

More information on the Patient Self-Determination Act can be found here.

What is a Health Care Power of Attorney?

The health care power of attorney lets you choose someone (called your “agent”) to make health care decisions for you in the future, if you are no longer able to make these decisions for yourself. You are called the "principal" in the power of attorney form. Your agent would make health care decisions for you if you were no longer able to make these decisions for yourself. So long as you are able to make these decisions, you will still have the power to do so. You may give your agent specific directions about the health care you do or do not want. The agent you choose must be at least age 18, should be someone who knows you well, and cannot be your health care professional or other health care provider. When you sign the health care power of attorney document, it should be witnessed by someone who is not your agent.

The power of your agent to make health care decisions on your behalf is broad. Your agent would be required to follow any specific instructions you give regarding care you want provided or withheld. For example, you can say whether you want all life-sustaining treatments provided in all events; whether and when you want life-sustaining treatment ended; instructions regarding refusal of certain types of treatments on religious or other personal grounds; and instructions regarding anatomical gifts and disposal of remains. Unless you include time limits, the health care power of attorney will continue in effect from the time it is signed until your death. You can cancel your power of attorney at any time, either by telling someone or by canceling it in writing. You can name a backup agent to act if the first one cannot or will not take action. If you want to change your power of attorney, you must do so in writing.

The full Illinois Power Of Attorney Act can be found here.

What is a Living Will?

A living will is a directive to your health care providers that states whether you want life-sustaining procedures used if you have a terminal condition and are unable to state your wishes. A living will is not a substitute for a health care power of attorney and unlike a health care power of attorney, it only applies if you have a terminal condition. A terminal condition means an incurable and irreversible condition such that death is imminent and the application of any death delaying procedures serves only to prolong the dying process. Two physicians must certify that your condition is terminal.

Even if you sign a living will, food and water cannot be withdrawn if it would be the only cause of death. Also, if you are pregnant and your health care professional thinks you could have a live birth, your living will cannot go into effect.

In a living will, you may include specific directions about the death-delaying procedures you do or do not want. Two people must witness your signing of the living will. Your health care professional cannot be a witness. It is your responsibility to tell your health care professional if you have a living will, if you are able to do so. You can cancel your living will at any time, either by telling someone or by canceling it in writing.

The full Illinois Living Will Act can be found here.

What is a Do-Not-Resuscitate/Practitioner Order for Life Sustaining Treatment (DNR/POLST)?

A DNR/POLST Order is an advanced directive that says whether or not cardiopulmonary resuscitation (CPR) can be used if your heart and/or breathing stops. If you have a pulse and are breathing, it states your desires for life-sustaining treatment and medically administered nutrition.

In January 2015, a new standard DNR/POLST form went into effect in Illinois and it can be downloaded in English or Spanish here http://www.polstil.org/contact-polst/polst-form/. This Uniform DNR/POLST Order requires your signature or that of your authorized legal representative (your legal guardian, health care power of attorney, or health care surrogate), as well as the signature of your attending practitioner and a witness who is 18 years of age or older. A DNR/POLST Order will not be entered into your medical record unless it contains all of the required signatures. You can ask your practitioner to work with you to prepare the Uniform DNR/POLST Order.

Answers to other common questions about the POLST form and more information can be found here.

How is a DNR/POLST different from a Living Will?

A living will only applies when you have a terminal condition and is specific only to life-sustaining treatment. Two physicians must certify that you have a terminal condition. A Do-Not-Resuscitate/Practitioner Order for Life Sustaining Treatment (DNR/POLST) includes whether or not cardiopulmonary resuscitation (CPR) can be used and what types of life-sustaining treatment can be administered. A DNR/POLST must be signed by you, a health practitioner, and a witness and does not require additional physician approval to be effective.

What is a Mental Health Treatment Preference Declaration?

A mental health treatment preference declaration is an advance directive specific to mental health. It lets you state your wishes about mental health treatment when you have mental illness and are unable to make these decisions for yourself. You can state whether you want to receive certain medications or electroconvulsive treatment (ECT). It also allows you to say whether you wish to be admitted to a mental health facility for up to 17 days of treatment and whether there is a particular health professional that should be consulted if you are having mental health issues.

In this document, you (the “principal”) can state your wishes and/or you can appoint someone (called an “attorney-in-fact”) to make your mental health decisions for you. You cannot appoint your health care professional nor any employee of a health care facility in which you reside to be your attorney-in-fact. The person you appoint must accept the appointment in writing before he or she can start making decisions regarding your mental health treatment. The person you appoint must make decisions consistent with the wishes you stated in your declaration unless a court orders differently or an emergency threatens your life or health.

A mental health treatment preference declaration is only good for three years from the date you sign it. It must be witnessed by two people and those two people cannot be your health care professional, an employee of a health care facility in which you reside, or a family member related by blood, marriage or adoption. You may cancel your declaration in writing prior to its expiration as long as you are not receiving mental health treatment at the time of cancellation. If you are receiving mental health treatment, your declaration will not expire and you may not cancel it until the treatment is successfully completed.

What if I do not have a health care advance directive?

If you become unable to make your own health care decisions and have not named an agent in writing, a health care “surrogate” can be appointed. A surrogate is someone who is asked to make decisions for you and it could be a guardian, spouse, other family member or friend. In Illinois, a law directs which of these individuals will be consulted and in what order of priority. In that law, each of these individuals is called a surrogate.

There are reasons why you may want to name an agent yourself, rather than rely on a surrogate. The most important is that the person or people listed by this law may not be the people who you would want to make decisions for you. The other important reason is that there are limitations on decisions a surrogate can make. These limitations include whether to withdraw life-sustaining treatment (unless you have a “qualifying condition”) and mental health treatment. Under some circumstances, a surrogate may not be able to make the same kinds of decisions that an agent can make.

The full Illinois Health Care Surrogate Act can be found here.

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105 West Irving Park Road, Itasca, IL 60143
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