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What is a Power of Attorney (POA)?

An Illinois power of attorney (POA) is a legal paper that allows one party (an agent) to handle healthcare, property, financial, and personal matters on another person's (a principal's) behalf.

Choosing an agent is a big decision. The party can manage sensitive issues without notifying or consulting the principal. Further, these powers can be permanent or temporary.

Intending principals may set up powers of attorney independently or with lawyers in Illinois. However, they must comply with the laws governing powers of attorney, particularly 755 ILCS 45, to make the document legally binding. They must also understand the different types of POAs, their limitations, and the scope of powers to grant an agent.

What Types of Powers of Attorney Are Available in Illinois?

The State of Illinois recognizes the following types of powers of attorney:

  • Durable Power of Attorney
  • Power of Attorney for Property
  • Powers of Attorney for Health Care

While the different types of POAs allow agents to stand in for their principals, each has its distinctions. For example, powers of attorney for health care allow agents to make medical decisions for their principals, while powers of attorney for property permit agents to act within the boundaries of specified property and financial matters.

Below are brief explanations of the primary types of POAs in Illinois:

  • Durable Power of Attorney: The Illinois Durable Power of Attorney is governed by 755 ILCS 45/2. This type of POA is flexible, allowing individuals to create and limit specific powers for an agent. Illinois enables principals to determine when these powers become effective and terminated, how the POA can be revoked and amended, and appoint successor agents. They can also add other arrangements to the POA, as permitted by law.
  • Power of Attorney for Property: This document grants an agent broad powers to handle financial and property matters. It has specific requirements outlined in the Illinois Power of Attorney Act (755 ILCS 45/3), allowing the principal to specify an agent's powers and define the document's termination date and conditions.
  • Power of Attorney for Health Care: Otherwise called an Illinois Medical Power of Attorney, this document allows an agent to make medical decisions once conditions set by the principal are met, typically when the principal can no longer act personally. It is regulated by 755 ILCS 45/4.

Is Power of Attorney Public Record in Illinois

No, powers of attorney are generally not treated as public information in Illinois. These documents are not subject to 5 ILCS 140 (the Illinois Freedom of Information Act) since they are not created as part of a public body's official business. Instead, they are private documents designed to facilitate an individual's personal affairs.

However, there are instances where a POA may become accessible to the public.

Oftentimes, an agent must present the document to relevant parties to prove they have the legal authority to handle a principal's affairs. Therefore, when a POA document is submitted to a county clerk or recorder's office because of a real estate matter, it automatically becomes part of the county's public records and is subject to the Illinois Freedom of Information Act. For example, the Cook County Clerk allows anyone to view powers of attorney documents recorded in the county on an online property search database.

Powers of attorney documents submitted to courts during legal proceedings may also qualify as public information and can be obtained through court clerks' offices.

Moreover, 5 ILCS 312 (the Illinois Notary Act) permits notary publics to provide line items to requesting members of the public, provided that specific personal and sensitive information is concealed. Since most POAs must be notarized, they may be subject to this law.

How to Get Power of Attorney in Illinois

Hiring a lawyer is not a requirement to establish a POA in Illinois. However, professional legal input can simplify the process and eliminate risks or conflicts. For persons opting to proceed without a lawyer, they must keep certain considerations in mind. The first being that a power of attorney relationship primarily involves two individuals (the principal and agent), all of whom must be at least 18 years old:

Besides these, all parties must have a sound mental state. A principal must also determine their agent's powers, meet state witness qualifications, and ensure legally sufficient language in the POA form.

The process for establishing a power of attorney in Illinois is outlined below.

Step 1. Decide the Powers of the Agent

The responsibilities delegated to an agent ultimately dictate the type of power of attorney one should create. Individuals may consider the following when determining the extent of their agent's powers:

  • Assess their current situation.
  • Identify the areas where they need assistance with important decisions (such as health, finances, property, taxes, career, etc.).
  • Weigh the risks of another person making those decisions.
  • Consider candidates for the position and judge their capabilities.
  • Decide how long an agent should act on their behalf.
  • Determine the safeguards to implement, if any (such as limiting the agent's powers or the POA's duration).

It is important to specify an agent's responsibilities, as certain powers become effective by default unless the principal indicates what the agent can or cannot do.

For example, when filling out a Statutory Short Form Power of Attorney for Property document, individuals can strike out actions they want their agents to refrain from. They can also include more obligations if the listed powers do not cover the scope of the agent's proposed duties.

In the same vein, principals establishing a medical power of attorney can select specific duties that an agent can perform when they are incapacitated.

Step 2. Select the Type of Power of Attorney

Once an individual identifies the powers they want to grant an agent, they can choose the type of POA best suited to their objectives. For instance, a person who wants an agent to carry out financial transactions can opt for the Illinois Statutory Short Form Power of Attorney for Property. On the other hand, people who want others to make medical decisions for them can establish a Power of Attorney for Healthcare.

Individuals can also create a POA for matters other than finance, property, and health by following the provisions outlined in the Illinois Durable Power of Attorney law (755 ILCS 45/2).

Step 3. Choose a POA Form

POA forms are the documents that establish an agent's powers in Illinois. While statutory forms are integrated into the Illinois Power of Attorney Act, the law allows individuals to create custom (or non-statutory) forms. Personalized forms hold the same legal weight as the statutory ones and allow people to craft POA documents that specifically meet their needs.

One can also use custom forms created by different government bodies for specific purposes. For instance, the Illinois Department of Revenue has different Power of Attorney forms for delegating tax responsibilities.

Step 4. Decide the POA's Duration

Every Illinois POA remains valid throughout a principal's life unless the principal revokes it or indicates a termination date.

Individuals should take care to express the duration of the POA, especially if they do not want their agents making decisions for them longer than a specific period. They can also establish conditions that activate or terminate the POA, such as when incapacitated or unavailable.

Step 5. Choose an Agent

Choosing an agent in Illinois is a significant decision that requires careful thought. The principal should select someone they trust who is responsible, capable of fulfilling their wishes, and willing to assume the responsibility.

Not everyone can be an agent in Illinois. The person must be at least 18 years old and be of sound mind. Principals may use the following individuals:

  • Spouse
  • Family member
  • Trusted friend
  • Colleague

Certain restrictions prohibit specific entities from acting as agents. For example, a person's healthcare provider cannot serve as their medical POA agent per 755 ILCS 45/4-5.

Step 6. Choose a Witness

Every Illinois power of attorney document, except a non-statutory health care POA form, must include the signature of at least one witness.

Illinois law prevents the following individuals from acting as witnesses:

  • A principal's attending physician or mental health provider (and their relatives)
  • Owners and operators (including their relatives) of a healthcare facility where the principal is a resident or patient
  • The principal's close family members, including:
    • Parents
    • Siblings
    • Children (descendants)
    • Spouses of the above relatives
  • The agents named in the POA
  • A notary who signs the same form

While only one witness is enough to validate a POA in Illinois, individuals can add more, especially if they will use the document in a different state where more witnesses are required. Further, at least one witness is needed whenever one wants to revoke any power of attorney, and they must meet the same criteria.

Step 7. Fill Out the Form

Now that everything is ready, the individual can complete their POA form. If one uses a statutory form, they must strike out portions not relevant to what they want but ensure they comply with the law.

It is important to add relevant details to the form, such as the duration of the power of attorney (if any) and when it becomes active. Not indicating when the POA becomes valid means it will be effective once the principal and other parties sign it. Also, not specifying the duration of the POA means it will remain valid until the principal dies or revokes the POA.

A POA can only be legally valid in Illinois if the required parties sign it. In some cases, especially for property and finance-related POAs, the form must be notarized.

Step 8. Add the Specimens of the Agent's Signature

While this step is optional, it is recommended. The Illinois Power of Attorney Act allows members of the public to add the specimens of the signatures of their agents, co-agents, and successor agents to the POA document.

Since agents do not sign the original form, these specimens can be used to verify their signature on documents or checks they sign on behalf of the principal. It is an effective alternative to providing their Certification and Acceptance of Authority paperwork.

Step 9: Issue Copies of the Completed Form to Relevant Parties

People can produce copies of their power of attorney document and send them to the following individuals or offices:

  • Agent, co-agents, and successor agents
  • Banks and other financial institutions
  • Health care provider
  • County clerks or recorders (for real estate purposes)

Step 10: Keep the POA Up to Date

Principals can update their POAs at any time to alter or terminate an agent's powers. They must notify a witness of their intent to change the document and communicate this to the relevant parties.

They can also create a new POA and indicate that older documents are revoked once the new one becomes effective.

Additionally, people can include optional provisions in their healthcare POA that establish a 30-day waiting period after stating their desire to terminate a power of attorney. That way, they have enough time to review their decision.

What Are the Signing Requirements for a Power of Attorney in Illinois?

In Illinois, a notary must confirm a principal's identity and witness the signing of the POA document. This requirement does not affect a healthcare POA. Another witness, not the notary, must also witness and validate the principal's signature and state of mind. However, people signing non-statutory healthcare POA forms do not need witnesses present to validate the document.

Individuals can also include specimens of an agent's or successor agent's signature. The parties must also certify these specimens individually if they add them.

How Much Does it Cost to Get a Power of Attorney in Illinois?

People can set up POAs in Illinois without an attorney. However, hiring an attorney to draft a POA will cost anyone requiring the document. The charges involved depend on the lawyer but may cost up to $200 or higher.

Is it Necessary to Hire a Lawyer to Draft a POA in Illinois?

While Illinois law does not require an attorney's involvement when setting up a POA, hiring one can be beneficial. POAs are important legal documents that grant one person significant control over another's affairs. Mistakes or oversights in the document's language can lead to unintended consequences or limitations on the agent's powers.

A legal professional can help ensure their client's POA reflects their desires. They can advise on the different types of POAs available in Illinois and help the principal choose a fitting one. They can also add specific provisions or limitations or draft custom POAs that accurately reflect the principal's objectives and comply with the law.

Can I Revoke a Power of Attorney in Illinois?

Yes. Individuals can revoke an Illinois power of attorney by destroying the document with the intention to revoke it or communicating their desire to cancel the POA to a qualified witness.

Principals must generally be in good health and of sound mind to revoke a power of attorney. However, one can revoke a healthcare POA regardless of physical or mental health condition. Note that a healthcare POA is also automatically revoked when a principal assigns a new agent or completes a new statutory healthcare POA form.

Moreover, people can also revoke previous POAs by clearly stating that the new POA revokes the former one.

How Long Does a Power of Attorney Last in Illinois?

Illinois powers of attorney do not have expiration dates by default. Each principal must include a termination date or condition or revoke the POA. Otherwise, the POA will remain valid until the principal dies.

Certain POAs have wording that automatically invalidates older ones. For example, the City of Chicago's Department of Finance's Power of Attorney form has a provision that revokes earlier tax-related powers of attorney. Thus, individuals must be careful when filling out these forms to ensure they do not unknowingly terminate an existing POA.

Can I Appoint Multiple Agents under Power of Attorney in Illinois?

Yes. The Illinois Power of Attorney Act permits individuals to appoint multiple agents, called co-agents, outside property, finance, and health matters. These agents are authorized to work jointly, and every decision must have majority approval.

However, a co-agent can make decisions independently in specific situations, such as emergencies, especially when other co-agents are unavailable.

The Act also lets principals employ successor agents regardless of the type of POA. The next successor agent becomes the main agent when the previous agent resigns, refuses to act, is disqualified, or dies. Unless the power of attorney states otherwise, the successor agent will have the same powers as their predecessor. The principal is also free to assign someone else to choose a successor.

Additionally, a person can create separate agents for different matters. For example, they can appoint one agent for health-related decisions and another for property and financial issues. That way, they can delegate various affairs to capable individuals.

What Happens If I Do Not Have a Power of Attorney and Become Incapacitated in Illinois?

If a person without a power of attorney becomes incapacitated, other advance directives and the Illinois laws governing them will kick in. An advance directive is legal paperwork that expresses a person's desires should they become unable to make decisions. These documents include do-not-resuscitate (DNR) orders, mental health treatment preference declarations, and living wills.

In the absence of an advance directive, 755 ILCS 40 (the Illinois Health Care Surrogate Act) permits specific individuals to make medical decisions on behalf of the incapacitated person. In order of priority, they include the patient's

  • Guardian of person
  • Spouse
  • Adult child
  • Parents
  • Sibling
  • Adult grandchild
  • Close friend
  • Guardian of estate
  • Temporary custodian

Does an Illinois Power of Attorney Need to be Notarized?

Yes. 755 ILCS 45/3-3 establishes that a notary public must acknowledge and validate a principal's identity and signature if they prepare a POA for property and finance matters. However, Illinois law does not require a healthcare POA to be notarized.

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