Stepping In:
When you take over responsibilities
for an older family member

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A Publication of Prairie State Legal Services

Revised: January 06, 2003

Content Updated: January 2003

About These Materials

The following information is not meant to be legal advice or to replace the advice you should receive from an attorney. There are times when it would be wise to consult a lawyer and other times when it is essential to do so. Always remember, each individual case is unique. If you have additional questions or want legal advice, contact the Prairie State Legal Services office nearest you.
 

Introduction

If you have a family member who requires extra assistance due to advanced age or medical problems, you may have questions about what you can and cannot do for them. Most of the assistance you offer requires no special legal authority. Perhaps you drive your family member to doctor appointments, pick up groceries for him or her, read letters or notices to them, and help find services that he or she may require. However, when it comes to dealing with finances or making decisions about medical care or placement in a long term care facility, you may need to have appropriate legal authority to make these decisions.

You can get legal authority to help your family member through a guardianship, an advance directive or less formal means. If the family member is able to understand and make decisions and simply desires help in taking care of his or her affairs, the family member can utilize an advance directive such as a power of attorney. However, if your family member no longer has the capacity to understand and make decisions and has not already prepared appropriate advance directives, it may be necessary to obtain a guardianship.

When you take responsibility for an older family member in need of care remember you are not alone. There are many programs and services to help you. To locate resources in your area contact a local Caregiver Resource Center. To find the resource center for your area contact the Illinois Department on Aging Senior Helpline at 800-252-8966 or visit their website at www.state.il.us/aging.

The following information was prepared by Prairie State Legal Services, a not-for-profit provider of legal services. Services for senior citizens and for persons caring for senior family members are provided by Prairie State through a grant from Northeastern Illinois Area Agency on Aging.. Check Prairie State’s website at www.pslegal.org for additional legal information available from Prairie State Legal Services.

For legal help contact the Prairie State Legal Services office which serves your county. Counties with an * offer special services for caregivers.

The information in this publication is not meant to replace specific legal advice you might receive from an attorney. There are times when it would be wise to consult a lawyer and other times when it is essential to do so. Always remember, each individual case is unique. This publication offers a summary of some of the most commonly used decision-making tools for acting on behalf of an older person in need.

Advance directives

If your family member is able to understand and make decisions, he or she can use a variety of strategies to allow someone else to act on his or her behalf when needed. Advance directives can often provide the tools for acting on the person’s behalf should the family member lose the capacity to make important decisions.

Power of Attorney for Property

A Power of Attorney (POA) for Property is a document in which the family member ( the “principal”) delegates authority to handle his or her finances and make financial decisions on his or her behalf. For most people, a POA for Property is a way to enable another person to act on his or her behalf with regard to issues relating to property rights. In 1987, Illinois passed the Durable Power of Attorney Act which provides that an agent’s authority may endure during periods of disability throughout the principal’s lifetime.

If your family member appoints you to be his or her agent, the Power of Attorney document should specify what financial decisions you are authorized to make.

The agent’s powers can include the power to:

• Make real estate or personal property transactions;
• Control all bank (or other financial institution) transactions or accounts;
• Buy and sell all types of stocks and securities;
• Open and control safe deposit boxes;
• Deal with any type of insurance or annuity policy or transaction;
• Contribute to or withdraw from any retirement plans;
• Handle all tax matters;
• Bring or defend or settle all claims and lawsuits;
• Conduct all business operations;
• Borrow money or mortgage property;
• Handle legacies, bequests, or other estate transactions.

As an agent, you do not have the right to override the decisions of the family member who appointed you. You can decline to act if you become ill or decide for any other reason that you do not wish to handle your family member’s affairs. Whenever you serve as the agent for your family member, you are required to use due care to act for the benefit of your family member according to the terms of the POA. Your family member has the right to end the POA at any time, provided that he or she understands what he/she is doing. A Power of Attorney for Property gives the agent the authority to handle the family member’s affairs during his or her life, and this authority ends upon the death of the family member.

Power of Attorney for Health Care

A Power of Attorney (POA) for Health Care is a document in which an individual gives a designated person the authority to make health care and personal care decisions on the individual’s behalf. The statutory short form of the Power of Attorney for Health Care includes a section in which the family member (the “principal”) states his or her wishes about life support. As agent you must follow what the document says. For health care decisions other than life support issues, you should decide what to do based on what your family member has previously told you, or on what you think your family member would want done under the circumstances. As long as the principal is able to make and express his or her wishes, you do not have the authority to override these decisions.

When a health care provider is given a copy of the POA for Health Care, it is required to place it in the individual’s medical record. Whenever a provider believes the individual lacks the capacity to consent to necessary health care, the provider is required to consult with any agent that it knows about.

Joint Bank Accounts

Many families have utilized joint bank accounts to enable a caretaker to manage finances for a family member who needs help paying bills and having access to cash for various things. Regardless of the sources of the deposits in a joint account, the bank considers all of the funds deposited in the account to be owned by all of those whose names are on the account. As far as the bank is concerned, any or the joint owners may withdraw any of all of the funds without the consent or knowledge of the other joint tenants.

Deposits in joint accounts created solely for the convenience of a family member who needs help managing finances do not constitute a gift to the other joint tenants. There is, however, a strong but rebut table presumption that a deposit by one of the joint tenants is a gift to the other joint tenants. This situation, although convenient, makes an elderly or disabled person vulnerable to easy theft. To be above reproach, the person “stepping in” to give money management and bill paying assistance should not co-mingle his or her own funds and should maintain records on how the funds are expended.

Representative Payee

When a Social Security recipient is unable to handle his or her financial affairs, a relative, friend or nursing home can request that payments be made to them for the benefit of the recipient. This request must include clear proof that the recipient is unable to manage the funds. If the request is granted, checks are sent directly to the representative payee for the benefit of the recipient. The representative payee must use the money in the recipient’s best interest. In general, the money should be used to pay for the recipient’s basic living expenses.

There are two restrictions on the use of the payment by the representative payee: (1) Benefit checks must be used to provide for the recipient’s current and reasonable foreseeable needs before they are used to pay for any of the recipient’s prior debts; and (2) the payee must report to the Social Security Administration and account for all payments and all expenditures made by him or her as payee.

What happens if your family member has not prepared an advance directive and needs someone to make medical treatment decisions

The Health Care Surrogate Act

If the attending physician determines that his or her adult patient lacks decisional capacity or otherwise has a qualifying condition (as defined in the statute) and has no advance directive, the law provides for a procedure to select a surrogate decision maker and to obtain medical decisions without the necessity of obtaining a court order.

The following order of priority is used in selecting the surrogate decision maker:

1. The patient’s legally appointed “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 grandchild of the patient;
7. A close friend of the patient;
8. The patient’s legally appointed “guardian of the estate”.

When there is more than one person at the same priority level, they are required to try to reach an agreement about the decision to be made. If they cannot reach an agreement, the doctor will honor the decision made by the majority of the persons in the priority level, unless the minority initiates a court case to resolve the issue. If any person of a lower priority level disagrees with the decision made by a decision maker, under this law, they too may file a case in court.

A surrogate decision maker can make health care decisions on behalf of the incapacitated patient only if the treating doctor certifies in writing that the patient lacks the ability to make and communicate his or her own decisions about medical treatment. If a doctor makes that decision, the doctor is then required to try to determine whether the patient has another kind of advance directive regarding medical treatment. If the doctor cannot identify a valid or applicable advance directive, the doctor must try to determine whether the patient has any relatives or friends available to serve as a surrogate. Once a doctor certifies in the medical record that a patient lacks decisional capacity and a proper surrogate is identified, that person is legally authorized to make medical decisions on the patient’s behalf. When making decisions, the surrogate is required to do what he or she thinks the patient would want done under the circumstances. In making the decision, the surrogate must take into consideration the patient’s personal, religious, and moral values.

Surrogate decisions involving the withholding or withdrawal of life-sustaining treatment require enhanced procedural protections. After personal examination, the attending physician plus at least one other qualified physician, must determine the patient has a “qualifying condition” and certify such in writing in the patient’s record. A qualifying condition is defined as one or more of the following:

1. “Terminal condition” means an illness of injury for which there is no reasonable prospect of cure or recovery, death is imminent, and the application of life-sustaining treatment would only prolong the dying process.
2. “Permanent unconsciousness” means a condition that, to a high degree of medical certainty,
   (i) will last permanently, without improvement,
   (ii) in which thought, sensation, purposeful action, social interaction, and awareness of self and environment are absent; and
   (iii) for which initiating or continuing life-sustaining treatment, in light of the patient’s medical condition, provides only minimal medical benefit.
3. “Incurable or irreversible condition” means an illness or injury
   (i) for which there is no reasonable prospect of cure or recovery;
   (ii) that ultimately will cause the patient’s death even if life-sustaining treatment is initiated or continued;
   (iii) that imposes severe pain or otherwise imposes an inhumane burden on the patient; and
   (iv) for which initiating or continuing life-sustaining treatment, in light of the patient’s medical condition, provides only minimal medical benefit.

The Act permits a surrogate decision maker to make the decision to forgo life-sustaining treatment, but only if the individual lacks decisional capacity and has a qualifying condition. Whenever a doctor makes the required findings in a case involving life support, the doctor must inform the patient. If the patient objects to the surrogate decision maker or objects to the decision made to terminate life support, then this law will not apply. In that situation, a decision whether to forgo life support can only be made through a court proceeding by filing a petition for guardianship.

Guardianship

The court may appoint a “guardian of the person” or a “guardian of the estate.” Often, the same person is appointed both guardian of the estate and guardian of the person though they can be different people.

Guardian of the Person: This refers to the authority of the guardian to make decisions concerning the personal and physical care of the ward (the disabled person), including health care decisions and living arrangements.

Guardian of the Estate: This refers to the authority of the guardian to handle the money, property, bills, and other financial affairs of the ward.

If the judge decides that the disabled person still has the ability to handle some but not all of his or her affairs in some ways, the guardian may be given authority to handle only certain matters. This is referred to as a “limited guardianship.”

If the judge determines that the ward is completely unable to handle his or her affairs, then the judge may give the guardian the authority to handle all such affairs. This is referred to as a “plenary guardianship.”

The guardian is required to protect the ward’s best interests. This includes the duty to provide for the ward’s support, housing, and health. The guardian is required to help the ward achieve the maximum degree of self-reliance and independence.

When making decisions on the ward’s behalf, a guardian of the person should try to do what he or she believes the ward would want done under the circumstances. The guardian should take into consideration the ward’s personal, religious and moral beliefs.

A guardian of the estate must handle the ward’s income and assets. If the income and assets are more than enough to pay for the ward’s day-to-day needs, the guardian of the estate is required to responsibly invest the funds within 60 days of being appointed the guardian must file a list of all the ward’s property - an inventory. The guardian will be required to file periodic reports with the court explaining how the ward’s finances and other affairs are being handled.

Procedure for Appointment of a Guardian The procedure for appointing a guardian involves three steps:

1. A Petition for Guardianship is filed in Court. The petition may be filed by the proposed guardian or by some other person with a concern for the disabled person’s affairs. A physician’s report, prepared after a recent examination, describing the person’s condition and need for a guardian must be filed with the petition.
2. The person filing the petition sends a notice of the time and place of the hearing to the disabled person and to certain specified relatives. Even if the case is not being contested, the judge often appoints a “Guardian ad Litem” (GAL). A GAL is a lawyer who the judge appoints to investigate the facts of the case. The GAL's job is to investigate whether a guardianship is needed, and, if so, the scope of the guardianship and who should serve as the guardian. The judge considers the GAL's opinions in making the final decision.
3. A court hearing is held: the judge decides whether the “person” is unable to safely handle his or her own affairs. If the judge makes a finding of disability, he or she will appoint a guardian of the person, the estate, or both. The judge will decide whether the guardian will have plenary power, or will be authorized to handle only a limited range of matters.

A guardianship is a drastic action which deprives the person of almost all basic rights. Therefore, a person alleged to be disabled is entitled to appear in court to contest the petition. He or she may request that the judge appoint an independent doctor to examine and report whether he or she is in need of a guardian.

An alleged disabled person is entitled to a court appointed lawyer if indigent, has the right to a jury trial, to confront and cross examine witnesses in opposition and present witnesses of his or her own.

Agency-Court Relationship

Any interested person may petition the court to revoke a power of attorney or to take such action as is necessary to provide for the best interests of a person delegating authority (the “principal) to an agent under a power of attorney but only if:

1) The court finds that the person who made the power of attorney (the “principal”) lacks the capacity to revoke or control the agency and

2) The court finds that the agent is not acting for the benefit of the principal in accordance with the directives of the agency, or that the agent’s action or inaction has caused or threatens harm to the principal’s person or property in a manner not authorized or intended by the principal.

Absent such findings and orders, a court appointed guardian will have no power, duty or liability with respect to any property, personal or healthcare matters covered by a properly executed POA.

For Additional Information:

Illinois Power of Attorney Act 755 ILCS 45/1-1 et seq.

Health Care Surrogate Act 755 ILCS 40/1-1 et seq.

Guardians for Disabled Adults 755 ILCS 5/11a-1 et seq.

Federal Old-Age, Survivors and Disability Insurance 20 CFR 404.2001 et seq. Subpart U Representative Payment 20 CFR 416.601 et seq. Subpart F Representative Payment

Prairie State Legal Services provides free legal services to low income persons and senior citizens with civil legal problems. Prairie State serves people regardless of race, religion, color, age, sex, disability, language, or national origin. To see if you are eligible for Prairie State’s services, call your local office 

Copyright 2002 Prairie State Legal Services, Inc.  ALL RIGHTS RESERVED         
For reprint permission contact Prairie State Legal Services, Attn: Publications
975 N. Main Street, Rockford, IL 61103, (815) 965-2134, publications@pslegal.org