Families often ask: “How do I get power of attorney when my loved one is already incapacitated?” The short answer is that you can’t — once a person can’t understand or sign documents, it’s too late to grant power of attorney. In Illinois, different legal processes apply. Understanding these rules helps families avoid costly delays and ensures that the right decisions can be made for an incapacitated person.
Like all content on this website, this article is educational in nature, and is not to be relied upon as legal advice. Consult with an attorney for counsel specific to your circumstances.
What Power of Attorney Is — and Isn’t
A power of attorney (POA) is a legal document that lets someone (the “principal”) give decision-making authority to another person (the “agent”). In Illinois, there are two common types:
- Power of Attorney for Health Care
- Power of Attorney for Property
But both require the principal to be mentally capable of signing when the document is created.
Why You Can’t Create a Power of Attorney After Incapacity
Once someone is legally incapacitated — for example, due to dementia, stroke, or coma — they no longer have the legal ability to grant authority. At that point, a lawyer cannot draft a valid power of attorney on their behalf.
Options If Your Loved One Is Already Incapacitated
If a person in Illinois is incapacitated and no POA is in place, the family must usually turn to the courts. The two most common routes are:
- Guardianship of the Person
- Court grants someone authority over personal and medical decisions.
- Similar in scope to a health care POA, but requires ongoing court oversight.
- Guardianship of the Estate
- Court grants someone authority over financial decisions and property.
- Similar in scope to a property POA, but also requires reports to the court.
These processes are more expensive and time-consuming than having a POA in place ahead of time.
How to Prevent This Situation
The best way to avoid guardianship is planning ahead. Encourage loved ones to:
- Sign POA documents while still healthy and mentally capable.
- Review them periodically, especially after major life changes.
- Consider pairing POA documents with a trust for more comprehensive planning.
Conclusion
Unfortunately, if your loved one is already incapacitated, you cannot get a new power of attorney. Instead, the Illinois courts may require a guardianship. The good news is that by planning early, families can spare themselves the stress, cost, and delay of court intervention.
If you need help setting up a power of attorney in Illinois, contact Palley Law Office to schedule an appointment to discuss your options.
