Beautiful woman looking at man lying on bed in hospital

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Young adults have blind spots about life because they were oblivious during their childhood of many decisions that their parents made for them. They never had to worry during childhood about filing income tax returns or whether to have x-rays or stitches because such decisions are “above the pay grade” of children. However, grown-ups must make their own decisions if possible. But what happens when it is not possible?

Health Decision Planning

Most states have medical consent laws that authorize people to appoint healthcare decision-makers ahead of time. For those people who do not make advance healthcare directives such as appointments of healthcare representatives or healthcare powers of attorney, the laws authorize certain people to make medical decisions for such unprepared, incapacitated adults.

In Illinois, the attending physician of an incapacitated adult must identify surrogate decision-makers in the following order of priority: (1) the patient’s guardian of the person; (2) the patient’s spouse; (3) any adult son or daughter of the patient; (4) either parent of the patient; (5) any adult brother or sister of the patient; (6) any adult grandchild of the patient; (7) a close friend of the patient; or (8) the patient’s guardian of the estate.

In most cases, consent to health care may be given for an incapacitated Indiana patient by: (1) a judicially appointed guardian of the person or healthcare representative; (2) a spouse, a parent, an adult child, or an adult sibling, or (3) the patient’s religious superior, if the individual is a member of a religious order.

These laws fill a decision-making gap that every person leaves when the person become seriously ill or injured and cannot make medical decisions. Unfortunately, those potential decision-makers may not be the people that the patient would choose. That is why every adult should make an advance healthcare directive such as an appointment of healthcare representatives or a healthcare power of attorney.

Business Decisions and Legal Actions

The same decision-making issues exist about an incapacitated person’s business and legal decisions that exist about healthcare. Unlike healthcare, however, no person can make business and legal decisions for an incapacitated adult without prior authority under a power of attorney or court order.

If a person does not make a power of attorney, guardianship is the only alternative for an incapacitated adult’s family to be able to make business and legal decisions. Guardianship is a costly and time-consuming process because the family must file a petition asking a probate court for appointment of a guardian for the incapacitated person. After the appointment, the guardian must seek the court’s permission for many kinds of decisions and then file written reports in the court about the outcome those decisions.

A person can avoid becoming a “headless beast” by empowering a responsible person with a power of attorney to pay bills, deal with insurance, and make other important decisions during a health crisis. We help clients select their decision-makers and encourage them to select multiple layers of decision-makers in case their first choice decision-makers are unable or unwilling to serve.

Conclusion

Most older adults remember feeling almost indestructible when they were younger. The aging process makes us aware of how many things can go wrong at any time. Wise young adults admit that they are not bulletproof and take these very simple planning steps to prevent a future health crisis from melting down into a heart-wrenching business and legal tragedy.

Jeff R. Hawkins and Jennifer J. Hawkins are Trust & Estate Specialty Board Certified Indiana Trust & Estate Lawyers and active members of the Indiana State Bar Association and National Academy of Elder Law Attorneys. Both lawyers are admitted to practice law in Indiana, and Jeff Hawkins is admitted to practice law in Illinois. Jeff is also a registered civil mediator, a Fellow of the American College of Trust and Estate Counsel and the Indiana Bar Foundation;  a member of the Illinois State Bar Association and the Indiana Association of Mediators; and he was the 2014-15 President of the Indiana State Bar Association.

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