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What is a Durable Power Attorney?

In Illinois, a durable power of attorney (DPOA) is a legal document that gives an individual the authority to act as an agent or attorney-in-fact. It allows them to make decisions for another person (or principal).

An Illinois Power of Attorney grants the chosen "agent" broad authority to manage financial matters. This authority may include the ability to pledge, sell, or otherwise dispose of any person's actual or personal property—even without consent or prior notification. This becomes especially important if a person becomes incapacitated or ill and is unable to make decisions for oneself. The structure for drafting a legitimate DPOA is provided by Illinois law, as defined by the Illinois Power of Attorney Act, guaranteeing that the principal's decisions are honored and upheld by the law.

In Illinois, powers of attorney are typically expressed in short form. The information provided in the short form offers a necessary set of optional powers that allow the individual to easily create the power of attorney that best suits their needs and ensures that the agent's authority will be respected by third parties with whom the Agent interacts, irrespective of the principal's state of mind or physical health at the time the power is used.

In Illinois, a Durable Power of Attorney must fulfill the following legal conditions and include the following information to be deemed valid:

  • The principal, or the person who drafts the DPOA, must be an adult who can think clearly enough to make choices.
  • The principal is required to execute the power of attorney.
  • The Agent and the Agent's authority must be named in the power of attorney.
  • It must state that the principal has acknowledged signing in front of a notary public;
  • It must be signed by at least one witness in the principal's signature.

Why Would You Need a Durable Power of Attorney in Illinois?

There are significant legal security and continuity benefits to establishing a Durable Power of Attorney (DPOA) in Illinois. This document guarantees that if an individual becomes unable to make decisions for themselves, their personal, financial, and health affairs will continue to be managed according to their wishes. It serves as a safety measure, guaranteeing that there is always a reliable person to perform crucial tasks, such as paying bills or making life-changing medical decisions. With the help of this legal tool, anyone may secure peace of mind for now and for the future.

People with dementia, Alzheimer's disease, injuries or illnesses, or those involved in auto accidents can all benefit greatly from having a Power of Attorney. It will allow an agent to handle critical financial decisions while they're recovering.

Some benefits of having a power of attorney include:

  • It gives people the power to decide (instead of a court) who will make decisions on their behalf.
  • It gets rid of the worry and anxiety that frequently accompany unanticipated circumstances like illness or disability.
  • Prevents delays in asset protection planning.

A DPOA is an effective tool, but it's not without risks. The most significant is the possibility of abusing or misusing the authority that has been given. This could include making judgments that are against the wishes of the principals or mismanaging finances. It's critical to recognize these potential risks and take precautions against them, such as selecting a reliable agent who demonstrates the required awareness of and respect for personal preferences and beliefs.

How to Use Durable Power of Attorney in Illinois?

In Illinois, the effective use of a power of attorney depends on how the document was initially filed. To facilitate the process of executing the POA in Illinois, all financial and medical institutions must keep copies of the agreement on file. To use the financial durable power of attorney, you must visit the principal's bank and the Illinois Department of Revenue to inform them that you are handling their affairs. To use the health care POA, you must visit the hospital to start making decisions regarding your health.

Who Should be Selected as The Agent for This Type of P of A?

Although most people name their spouse, a close friend, or a relative as their power of attorney, you can name another person who is not a relative to act in their place. The person designated to hold the power of attorney should ideally keep the principal's best interests in mind. Consider that picking a power of attorney should not be based on who is most closely related but rather on who can best represent your interests. The two most important qualities someone should possess are total trustworthiness and a track record of wise financial choices. Additionally, the person must be eloquent, self-assured, and eager to serve.

The Illinois Power of Attorney Act specifies the following criteria for choosing an agent:

  • The person must be at least eighteen years old;
  • The individual must be well-known to the principal, and the agent must be prepared to fulfill the principal's requests even if they conflict with their own;
  • The individual should feel at ease conversing with and Interrogating their doctors and other medical professionals;
  • The individual must be ready to take on this significant responsibility.

Who Can Be an Agent?

The only restrictions on who can be an agent in Illinois are the following:

  • The individual cannot be a person under 18 years.
  • A healthcare power of attorney must be granted to someone other than your primary healthcare provider (i.e., your doctor or caregiver).
  • The person must be mentally competent and able to reach their own decisions.

A few paid care agreements prohibit caregivers from serving as agents under POAs. Moreover, Your Agent may be a(n):

  • A neighbor,
  • Friend,
  • Unmarried partner,
  • Reliable advisor.
  • Family member

Choosing a person you trust and who you know well is crucial. The person must be prepared to take action on your behalf if you require assistance with your medical or financial issues. Simply by being named, agents are not required to take action. As a result, you need to confirm that the agent is prepared to assume accountability and act.

Can there be More than One Agent?

Yes, the Illinois Power of Attorney Act allows the appointment of two or more agents, also known as co-agents. The statute stipulates that co-agents "must exercise their authority jointly," this means that in a situation where there are two agents, they must both agree to a decision before it can be made. In a situation where there are three or more agents, the law stipulates that authority granted to 2 or more co-agents is exercisable only by their majority consent.

However, if an agent is unavailable due to absence, illness, or other temporary infirmity and urgent action is necessary to fulfill the objectives of a power of attorney or to prevent irreversible harm to the principal's interests, the other agent or agents may act on the principal's behalf.

Some advantages of having multiple co-agents include:

  • Convenience: It may be more convenient to have a second agent. Handling financial and estate matters can be sped up. For example, if one agent is stationed outside the town, another agent in the city can take care of any physical demands that must be satisfied.
  • Co-agency enables siblings or other close relatives to divide up the work. If the agent's responsibility is divided, it might be easier and less taxing for each participant to play the role. One agent working alone might not be able to handle the accounts or solve problems, and neither might two representatives.

Disadvantages of having multiple co-agents

  • Agent disagreements could arise in the event of a dual power of attorney. Agents can disagree on how to handle financial issues.
  • Fraud risks: Fraud concerns may arise when there are several agents on a financial POA. A co-agent's authority may not be recognized by third parties especially Financial firms who are cautious about fraud.

How to get Durable Power of Attorney in Illinois

Illinois recognizes two types of durable power of attorney: financial and property POA. You can get Durable Power of Attorney in Illinois by following all the steps below:

  • Identify the agent: Identify the individual for whom you want to make your durable power of attorney and inform the person. Ensure that the person does not live far away and is ready and available.
  • Obtain the form: Obtain the Durable power of attorney short form from the Illinois Guardianship and Conservation Commission online or in person at their office. The form can also be obtained for free through a number of third-party websites. It is essential to ensure that the form meets all the statutory requirements and contains all the necessary information as stipulated by the Power of Attorney Act.
  • Send a notice: Send an advance notice to the selected agent to request their consent as the chosen individual so they can sign.
  • Sign the POA in the Presence of a Notary Public: The POA agreement must be notarized and attested by a minimum of one individual who is eighteen years old in Illinois.
  • Give the agent a copy of the notarized paperwork and keep the original POA in a secure location. After you have finished the POA, inform your loved ones where to find the original and keep it in a secure location that they can easily access. You should provide your agent with a copy of the power of attorney so that they can converse with its contents.
  • Send a copy to the deeds recorder and financial institutions

You should also submit a copy of your power of attorney (POA) with the land records office (also known as the recorder of deeds in Illinois) in the county where you own real estate if you granted your agent the authority to transact real estate. In the unlikely event that your agent is required to sell, mortgage, or transfer real estate on your behalf, the recorder of deeds will acknowledge the agent's authorization. If you have a financial power of attorney, look into providing a copy to financial institutions. Copies of your durable financial power of attorney can also be provided to banks and other organizations your agent may contact down the road.

How to Write Durable Power of Attorney in Illinois

A power of attorney short form can either be a financial power of attorney form or a health care power of attorney form. This usually affects what is written in a power of attorney. Generally, the form must include the following sections

  • The duration of the agent's powers(until the principal dies)
  • Duty of the Agent (agent responsibilities)
  • Powers of the Agent (how much control they have) and limitations.
  • Applicability of the DPOA
  • Details of co-agents, if any
  • Agent certification and acceptance
  • Agency court relationship

the form must include the following information

  • Principals full name
  • Agents full name
  • Date
  • Agents signature
  • Principal's signature
  • Agents address
  • Principals initials

A power of attorney document must be as descriptive as possible, showing all the roles and responsibilities of the assigned agent. It is also important to represent the principal's wishes in the document. Use a trustworthy POA form, ideally from a recognized legal authority. Do not use forms that you get off the internet. Examine the document and make sure all the information in the POA document is correct and comprehensive by carefully reading it.

How Often Must I Update my Durable Power of Attorney?

Legal professionals advise that a power of attorney be examined to see if an update is necessary at least every two years. This update may be to change the agent or broaden or narrow the agent's range of powers as regards their functions as a power of attorney. However, Let's say that you need to alter or modify any information in the POA. If that is the case, you are legally obligated to revise the document, notarize it, and provide copies to your representatives and other relevant parties. Let your old Agent know when you change so they know to stop acting on your behalf.

There are three main circumstances why a person may want to update a durable power of attorney. This includes:

  • Life changes: A person may want to update their agent to their spouse when they get married, remove their spouse when they get divorced, or change it to their children when their children are grown up and can take up the responsibility of being an agent.
  • A change in the law: changes in the law can affect the powers an agent may be able to exercise; hence, it is important to change the scope of the agent's powers to reflect such changes
  • Problems with existing Agents: When a designated agent passes away or cannot carry out the duties, the authorized agent may be replaced. Also, when Your faith in your agent's ability to manage your financial and medical decisions has diminished.

Does the agent have to Follow the Principal's Wishes in Durable power of attorney?

Indeed, the Illinois Power of Attorney Act requires the agent to do their utmost to carry out the principal's objectives, at least to the extent that the agreement specifies the agent's responsibilities. The statute clearly outlines an agent's proper course of action and decision-making. It provides several guidelines that the agent must adhere to when it relates to doing the principal's wishes. Among the guidelines are the following:

The agent must:

  • Carry out the principal's reasonable expectations
  • Behave honestly and in the best interests of the principal, exercising appropriate caution, skill, and diligence; maintain an exhaustive record of all
  • Receipts, payments, and noteworthy activities carried out on behalf of the principal;

The law also stipulates that the agent must not.

  • Behave in a way that raises a conflict of interest that is at odds with the other tenets of the Notice to Agent or the wishes of the principal;
  • Behave in a manner that exceeds the authority authorized in the power of attorney;
  • Mix the principal's money with theirs;
  • Take out a loan for money or other assets from the principal unless permitted in another way;

When does the Durable P of A Start, and How Long Does it Last?

The durable power of attorney comes into effect immediately after it has been signed, notarized, and witnessed. Unlike springing power of attorney, the DPOA is immediately effective as soon as the principal signs it. Any power of attorney terminates automatically upon your death. Also, a durable POA expires if

  • You withdraw it. You may revoke your document, provided you are mentally competent.
  • There isn't an agent available.
  • Your document may be declared void by a court. This occurs rarely, but in the event that a court determines that you were the victim of fraud or undue influence or that you were not mentally competent at the time you signed the instrument, your document may be declared void.

What Decision-Making Power Does the Durable P of A Grant the Agent?

The power of attorney in Illinois grants the agents the power to make decisions related to property, finance and healthcare.This of course depends on the type of agreement that was set out originally by the principal.

In terms of health care, a power of attorney acknowledges the agent's right to manage every facet of the principal's personal and medical care, including the ability to refuse or request the discontinuation of medical treatment—even in the event of their death. The doctor's and other healthcare providers' duty to give treatment or maintain life and health is superseded by the agent's right to make decisions about a person's personal care.

In Illinois, the Durable P of A may grant the agent the authority to make financial decisions on behalf of the principal examples of such decisions include

  • Permitting a financial institution or one of its officers to handle a particular account-related action or activities
  • Taking a loan or other secured credit transaction on behalf of the principal
  • Enabling the transfer or sale of one or more designated bonds, stocks, or other assets,
  • Getting your cheques cashed
  • Financing and overseeing financial investments made in a certain business venture.
  • They are accepting funds on the principal's behalf.
  • Handle tax matters

Can the Durable P of A be Revoked?

Yes, In Illinois, a principal may revoke a DPOA at any time provided they are mentally competent. Written notice of this revocation will be sent to the designated agent and any individuals or organizations informed of the original DPOA to revoke a durable POA in Illinois. A witness, at least 18, must observe the notice of revocation being notarized. If the principal changes their mind again, there is a provision on the short form that allows them to specify a 30-day waiting period after expressing their desire for revocation. This is known as a delayed revocation.

A person must either destroy their document and any copies or notify someone who is at least 18 years old that they have changed their mind about replacing their agent. They must also complete a fresh form and make sure everyone they gave the old form to has a copy of the new one, including, but not limited to, agents, physicians, and financial institutions.

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