At Keller Legal Services, we often speak with clients who worry about what would happen if they were suddenly unable to make decisions for themselves. Illness, accidents, or age-related conditions can leave a person incapacitated, unable to manage finances, make healthcare decisions, or handle daily needs. Illinois law provides two main tools for planning and handling these situations: Powers of Attorney (POA) and Guardianship. Both options can ensure someone is legally authorized to act on your behalf, but they work in different ways and have different legal implications.
Incapacity occurs when a person is unable to manage their personal or financial affairs due to physical or mental limitations. Illinois courts often determine incapacity based on medical evidence and testimony from professionals. If no prior legal planning is in place, family members may face uncertainty, conflict, or delays in arranging for someone to take control of important decisions.
A Power of Attorney allows you to designate a trusted individual to make decisions for you if you cannot. Illinois law recognizes two primary types:
The key benefit of a POA is control. You choose who will act on your behalf, what powers they have, and when those powers take effect. Powers of Attorney can be durable, meaning they remain effective even if you are incapacitated.
Guardianship is a court-supervised arrangement where a judge appoints a person (the guardian) to make decisions for someone deemed legally incapacitated. Under 755 ILCS 5/11a-3, guardianship may be necessary if there is no valid POA or if there are disputes about a person’s decision-making ability.
There are two main types:
Guardianship requires a formal court process, including filing a petition, medical evaluations, and a hearing. The court retains oversight to ensure the guardian acts in the ward’s best interests. This process can take time and may involve legal costs and family conflicts.
While both options allow someone to manage your affairs, key differences include:
Planning ahead with a POA helps avoid the need for guardianship, sparing your family a lengthy and stressful court process. Without a POA, loved ones may have no legal authority to act until a guardian is appointed.
Courts determine incapacity based on medical evidence, professional evaluations, and testimony from those familiar with your condition. This determination is required for guardianship proceedings, but not for activating a POA if it is already in place.
Yes. If you have a POA but issues arise, a court can still appoint a guardian. However, a valid POA usually reduces the need for guardianship because your chosen agent already has legal authority to act.
Yes. As long as you are mentally competent, you can revoke or update your POA at any time. Changes must follow Illinois statutory requirements to be valid.
If you become incapacitated without a POA, family members must petition the court for
guardianship under 755 ILCS 5/11a-3. This process takes time, costs money, and may lead to disagreements over who should serve as a guardian.
Both roles are typically filled by adults who are competent and willing to act. Courts prefer close relatives but may appoint a neutral third party if disputes exist. Your chosen POA agent can be anyone you trust, even a friend or professional advisor.
Yes. Under Illinois law, divorce automatically revokes a spouse’s designation as an agent under a POA unless the document states otherwise (755 ILCS 45/2-6). Divorce does not change guardianship arrangements unless the court orders otherwise, but it can affect who is appointed as guardian.
No. Both roles are limited to the powers granted by law or the POA document. Courts and statutes protect your rights and require decisions to be in your best interests. Agents and guardians cannot override certain personal rights unless specifically authorized.
At Keller Legal Services, we help families throughout Naperville and Chicago prepare for the unexpected. We draft clear, enforceable Powers of Attorney and represent clients in guardianship proceedings to ensure their rights and interests are protected. Planning ahead avoids conflict and ensures trusted decision-makers are in place.
Contact our Naperville guardianship lawyer at Keller Legal Services by calling 630-505-1515 to receive your free consultation. We proudly serve clients throughout Illinois, providing legal guidance to protect your future and your family.
