755 ILCS 45
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755 ILCS 45 |
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Article I |
Short Title Savings Clause |
755 ILCS 45/2-1
Purpose. The General Assembly recognizes that each
individual has the right to appoint an agent to make property,
financial, personal, and health care decisions for the individual but
that this right cannot be fully effective unless the principal may
empower the agent to act throughout the principal's lifetime, including
during periods of disability, and have confidence that third parties
will honor the agent's authority at all times.
The General Assembly finds that in the light of modern financial needs and advances in medical science, the statutory recognition of this right of delegation in Illinois needs to be restated, which will, among other things, expand the application and the permissible scope of the agent's authority, clarify the power of the individual to authorize an agent to make financial and care decisions for the individual and better protect health care personnel and other third parties who rely in good faith on the agent so that reliance will be assured. Nothing in this Act shall be deemed to authorize or encourage euthanasia, suicide or any action or course of action that violates the criminal law of this State or the United States. Similarly, nothing in this Act shall be deemed to authorize or encourage any violation of a civil right expressed in the Constitution, statutes, case law and administrative rulings of this State (including, without limitation, the right of conscience respected and protected by the Health Care Right of Conscience Act, as now or hereafter amended) or the United States or any action or course of action that violates the public policy expressed in the Constitution, statutes, case law and administrative rulings of this State or the United States.
755 ILCS 45/2-2
This Article shall be known and may be cited as the
"Durable Power of Attorney Law".
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755 ILCS 45/2-3
Definitions. As used in this Act:
(a) "Agency" means the written power of attorney or other instrument
of agency governing the relationship between the principal and agent or
the relationship, itself, as appropriate to the context, and includes
agencies dealing with personal or health care as well as property. An
agency is subject to this Act to the extent it may be controlled by the
principal, excluding agencies and powers for the benefit of the agent.
(b) "Agent" means the attorney‑in‑fact or other person designated to act for the principal in the agency.
(c)
"Disabled person" has the same meaning as in the "Probate Act of 1975",
as now or hereafter amended. To be under a "disability" or "disabled"
means to be a disabled person.
(c‑5) "Incapacitated", when used to
describe a principal, means that the principal is under a legal
disability as defined in Section 11a‑2 of the Probate Act of 1975. A
principal shall also be considered incapacitated if: (i) a physician
licensed to practice medicine in all of its branches has examined the
principal and has determined that the principal lacks decision making
capacity; (ii) that physician has made a written record of this
determination and has signed the written record within 90 days after
the examination; and (iii) the written record has been delivered to the
agent. The agent may rely conclusively on the written record.
(d) "Person" means an individual, corporation, trust, partnership or other entity, as appropriate to the agency.
(e)
"Principal" means an individual (including, without limitation, an
individual acting as trustee, representative or other fiduciary) who
signs a power of attorney or other instrument of agency granting powers
to an agent.
755 ILCS 45/2-4
Applicability. (a) The principal may specify in the agency
the event or time when the agency will begin and terminate, the mode
of revocation or amendment and the rights, powers, duties,
limitations, immunities and other terms applicable to the agent and
to all persons dealing with the agent, and the provisions of the
agency will control notwithstanding this Act, except that every
health care agency must comply with Section 4-5 of this Act (755 ILCS
45/4-5).
(b) From and after the effective date of this Act: (1) this Act governs every agency, whenever and wherever executed, and all acts of the agent to the extent the provisions of this Act are not inconsistent with the agency; and (2) this Act applies to all agencies exercised in Illinois and to all other agencies if the principal is a resident of Illinois at the time the agency is signed or at the time of exercise or if the agency indicates that Illinois law is to apply. Providing forms of statutory property and health care powers in Articles III and IV (755 ILCS 45/3-1 et seq. and 755 ILCS 45/4-1 et seq.) does not limit the applicability of this Act, it being intended that every agency, including, without limitation, the statutory property and health care power agencies, shall have the benefit of and be governed by Article II (755 ILCS 45/2-1 et seq.), by Sections 4-1 through 4-9 and Section 4-11 of Article IV (755 ILCS 45/4-1 through 755 ILCS 45/4-9 and 755 ILCS 45/4-11), and by all other general provisions of this Act, except to the extent the terms of the agency are inconsistent with this Act.
755 ILCS 45/2-5
Duration of agency ‑ amendment and revocation. Unless the
agency states an earlier termination date, the agency continues until
the death of the principal, notwithstanding any lapse of time, the
principal's disability or incapacity or appointment of a guardian for
the principal after the agency is signed. Every agency may be amended
or revoked by the principal, if the principal has the capacity to do
so, at any time and in any manner communicated to the agent or to any
other person related to the subject matter of the agency, except that
revocation and amendment of health care agencies are governed by
Section 4‑6 of this Act except to the extent the terms of the agencies
are inconsistent with that Section. The execution of a power of
attorney does not revoke a power of attorney previously executed by the
principal unless the subsequent power of attorney provides that the
previous power of attorney is revoked or that all other powers of
attorney are revoked.
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755 ILCS 45/2-6
Effect of disability - divorce. (a) All acts of the agent
within the scope of the agency during any period of disability,
incapacity or incompetency of the principal have the same effect and
inure to the benefit of and bind the principal and his or her
successors in interest as if the principal were competent and not
disabled.
(b) If a court enters a judgement of dissolution of marriage or
legal separation between the principal and his or her spouse after
the agency is signed, the spouse shall be deemed to have died at the
time of the judgment for all purposes of the agency.
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755 ILCS 45/2-7
Duty ‑ standard of care ‑ record‑keeping ‑ exoneration.
(a) The agent shall be under no duty to exercise the powers granted by
the agency or to assume control of or responsibility for any of the
principal's property, care or affairs, regardless of the principal's
physical or mental condition. Whenever a power is exercised, the agent
shall act in good faith for the benefit of the principal using due
care, competence, and diligence in accordance with the terms of the
agency and shall be liable for negligent exercise. An agent who acts
with due care for the benefit of the principal shall not be liable or
limited merely because the agent also benefits from the act, has
individual or conflicting interests in relation to the property, care
or affairs of the principal or acts in a different manner with respect
to the agency and the agent's individual interests. The agent shall not
be affected by any amendment or termination of the agency until the
agent has actual knowledge thereof. The agent shall not be liable for
any loss due to error of judgment nor for the act or default of any
other person.
(b) An agent that has accepted
appointment must act in accordance with the principal's expectations to
the extent actually known to the agent and otherwise in the principal's
best interests.
(c) An agent shall keep a record
of all receipts, disbursements, and significant actions taken under the
authority of the agency and shall provide a copy of this record when
requested to do so by:
(1) the principal, a guardian, another fiduciary
acting
on behalf of the principal, and, after the death of the principal, the
personal representative or successors in interest of the principal's
estate;
(2) a representative of a provider agency, as defined
in
Section 2 of the Elder Abuse and Neglect Act, acting in the course of
an assessment of a complaint of elder abuse or neglect under that Act;
(3) a representative of the Office of the State Long
Term
Care Ombudsman, acting in the course of an investigation of a complaint
of financial exploitation of a nursing home resident under Section 4.04
of the Illinois Act on the Aging;
(4) a representative of the Office of Inspector
General
for the Department of Human Services, acting in the course of an
assessment of a complaint of financial exploitation of an adult with
disabilities pursuant to Section 35 of the Abuse of Adults with
Disabilities Intervention Act; or
(5) a court under Section 2‑10 of this Act.
(d) If the agent fails to provide his or her record of all receipts,
disbursements, and significant actions within 21 days after a request
under subsection (c), the elder abuse provider agency or the State Long
Term Care Ombudsman may petition the court for an order requiring the
agent to produce his or her record of receipts, disbursements, and
significant actions. If the court finds that the agent's failure to
provide his or her record in a timely manner to the elder abuse
provider agency or the State Long Term Care Ombudsman was without good
cause, the court may assess reasonable costs and attorney's fees
against the agent, and order such other relief as is appropriate.
(e) An agent is not required to disclose receipts, disbursements, or
other significant actions conducted on behalf of the principal except
as otherwise provided in the power of attorney or as required under
subsection (c).
(f) An agent that violates this
Act is liable to the principal or the principal's successors in
interest for the amount required (i) to restore the value of the
principal's property to what it would have been had the violation not
occurred, and (ii) to reimburse the principal or the principal's
successors in interest for the attorney's fees and costs paid on the
agent's behalf. This subsection does not limit any other applicable
legal or equitable remedies.
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755 ILCS 45/2-7.5
repealed
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755 ILCS 45/2-8
Reliance on document purporting to establish an agency.
(a) Any person who acts in good faith reliance on a copy of a document
purporting to establish an agency will be fully protected and released
to the same extent as though the reliant had dealt directly with the
named principal as a fully‑competent person. The named agent shall
furnish an affidavit or Agent's Certification and Acceptance of
Authority to the reliant on demand stating that the instrument relied
on is a true copy of the agency and that, to the best of the named
agent's knowledge, the named principal is alive and the relevant powers
of the named agent have not been altered or terminated; but good faith
reliance on a document purporting to establish an agency will protect
the reliant without the affidavit or Agent's Certification and
Acceptance of Authority.
(b) Upon request, the
named agent in a power of attorney shall furnish an Agent's
Certification and Acceptance of Authority to the reliant in
substantially the following form:
AGENT'S CERTIFICATION AND ACCEPTANCE OF AUTHORITY
I, .......... (insert name of agent), certify that the attached is a
true copy of a power of attorney naming the undersigned as agent or
successor agent for ............. (insert name of principal).
I certify that to the best of my knowledge the principal had the
capacity to execute the power of attorney, is alive, and has not
revoked the power of attorney; that my powers as agent have not been
altered or terminated; and that the power of attorney remains in full
force and effect.
I accept appointment as agent under this power of attorney.
This certification and acceptance is made under penalty of perjury.*
Dated: ............
.......................
(Agent's Signature)
.......................
(Print Agent's Name)
.......................
(Agent's Address)
*(NOTE: Perjury is defined in Section 32‑2 of the Criminal Code of 1961, and is a Class 3 felony.)
(c) Any person dealing with an agent named in a copy of a document
purporting to establish an agency may presume, in the absence of actual
knowledge to the contrary, that the document purporting to establish
the agency was validly executed, that the agency was validly
established, that the named principal was competent at the time of
execution, and that, at the time of reliance, the named principal is
alive, the agency was validly established and has not terminated or
been amended, the relevant powers of the named agent were properly and
validly granted and have not terminated or been amended, and the acts
of the named agent conform to the standards of this Act. No person
relying on a copy of a document purporting to establish an agency shall
be required to see to the application of any property delivered to or
controlled by the named agent or to question the authority of the named
agent.
(d) Each person to whom a direction by the
named agent in accordance with the terms of the copy of the document
purporting to establish an agency is communicated shall comply with
that direction, and any person who fails to comply arbitrarily or
without reasonable cause shall be subject to civil liability for any
damages resulting from noncompliance. A health care provider who
complies with Section 4‑7 shall not be deemed to have acted arbitrarily
or without reasonable cause.
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755 ILCS 45/2-9
Preservation of estate plan and trusts. In exercising powers
granted under the agency, including powers of amendment or revocation
and powers to expend or withdraw property passing by trust, contract or
beneficiary designation at the principal's death (such as, without
limitation, specifically bequeathed property, joint accounts, life
insurance, trusts and retirement plans), the agent shall take the
principal's estate plan into account insofar as it is known to the
agent and shall attempt to preserve the plan, but the agent shall not
be liable to any plan beneficiary under this Section unless the agent
acts in bad faith. An agent may not revoke or amend a trust revocable
or amendable by the principal or require the trustee of any trust for
the benefit of the principal to pay income or principal to the agent
without specific authority and specific reference to the trust in the
agency. The agent shall have access to and the right to copy (but not
to hold) the principal's will, trusts and other personal papers and
records to the extent the agent deems relevant for purposes of this
Section. This Section shall not apply to any Totten Trust, Payable on
Death Account, or comparable trust account arrangement where the terms
of such trust are contained entirely on the financial institution's
signature card insofar as an agent acting under a power of attorney
executed in accordance with this Act shall be permitted to withdraw
income or principal from such account if the power of attorney grants
the agent authority to conduct financial institution transactions on
the principal's behalf and the agent's authority to access such account
is not expressly limited or withheld in the agency.
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755 ILCS 45/2-10
Agency‑court relationship.
(a) Upon
petition by any interested person (including the agent), with such
notice to interested persons as the court directs and a finding by the
court that the principal lacks either the capacity to control or the
capacity to revoke the agency, the court may construe a power of
attorney, review the agent's conduct, and grant appropriate relief
including compensatory damages.
(b) If the court
finds that the agent is not acting for the benefit of the principal in
accordance with the terms of the agency or that the agent's action or
inaction has caused or threatens substantial harm to the principal's
person or property in a manner not authorized or intended by the
principal, the court may order a guardian of the principal's person or
estate to exercise any powers of the principal under the agency,
including the power to revoke the agency, or may enter such other
orders without appointment of a guardian as the court deems necessary
to provide for the best interests of the principal.
(c) If the court finds that the agency requires interpretation, the
court may construe the agency and instruct the agent, but the court may
not amend the agency.
(d) If the court finds that
the agent has not acted for the benefit of the principal in accordance
with the terms of the agency and the Illinois Power of Attorney Act, or
that the agent's action caused or threatened substantial harm to the
principal's person or property in a manner not authorized or intended
by the principal, then the agent shall not be authorized to pay or be
reimbursed from the estate of the principal the attorneys' fees and
costs of the agent in defending a proceeding brought pursuant to this
Section.
(e) Upon a finding that the agent's
action has caused substantial harm to the principal's person or
property, the court may assess against the agent reasonable costs and
attorney's fees to a prevailing party who is a provider agency as
defined in Section 2 of the Elder Abuse and Neglect Act, a
representative of the Office of the State Long Term Care Ombudsman, or
a governmental agency having regulatory authority to protect the
welfare of the principal.
(f) As used in this
Section, the term "interested person" includes (1) the principal or the
agent; (2) a guardian of the person, guardian of the estate, or other
fiduciary charged with management of the principal's property; (3) the
principal's spouse, parent, or descendant; (4) a person who would be a
presumptive heir‑at‑law of the principal; (5) a person named as a
beneficiary to receive any property, benefit, or contractual right upon
the principal's death, or as a beneficiary of a trust created by or for
the principal; (6) a provider agency as defined in Section 2 of the
Elder Abuse and Neglect Act, a representative of the Office of the
State Long Term Care Ombudsman, or a governmental agency having
regulatory authority to protect the welfare of the principal; and (7)
the principal's caregiver or another person who demonstrates sufficient
interest in the principal's welfare.
(g) Absent
court order directing a guardian to exercise powers of the principal
under the agency, a guardian will have no power, duty or liability with
respect to any property subject to the agency or any personal or health
care matters covered by the agency.
(h)
Proceedings under this Section shall be commenced in the county where
the guardian was appointed or, if no Illinois guardian is acting, then
in the county where the agent or principal resides or where the
principal owns real property.
(i) This Section shall not be construed to limit any other remedies available.
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Successor agents.
(a) A principal may designate one or more successor agents to act if an
initial or predecessor agent resigns, dies, becomes incapacitated, is
not qualified to serve, or declines to serve. A principal may grant
authority to another person, designated by name, by office, or by
function, including an initial or successor agent, to designate one or
more successor agents. Unless a power of attorney otherwise provides, a
successor agent has the same authority as that granted to an initial
agent.
(b) An agent is not liable for the actions
of another agent, including a predecessor agent, unless the agent
participates in or conceals a breach of fiduciary duty committed by the
other agent. An agent who has knowledge of a breach or imminent breach
of fiduciary duty by another agent must notify the principal and, if
the principal is incapacitated, take whatever actions may be reasonably
appropriate in the circumstances to safeguard the principal's best
interest.
(c) Any person who acts in good faith
reliance on the representation of a successor agent regarding the
unavailability of a predecessor agent will be fully protected and
released to the same extent as though the reliant had dealt directly
with the predecessor agent. Upon request, the successor agent shall
furnish an affidavit or Successor Agent's Certification and Acceptance
of Authority to the reliant, but good faith reliance on a document
purporting to establish an agency will protect the reliant without the
affidavit or Successor Agent's Certification and Acceptance of
Authority. A Successor Agent's Certification and Acceptance of
Authority shall be in substantially the following form:
SUCCESSOR AGENT'S
CERTIFICATION AND ACCEPTANCE OF AUTHORITY
I certify that the attached is a true copy of a power of attorney
naming the undersigned as agent or successor agent for ..........
(insert name of principal).
I certify that to the
best of my knowledge the principal had the capacity to execute the
power of attorney, is alive, and has not revoked the power of attorney;
that my powers as agent have not been altered or terminated; and that
the power of attorney remains in full force and effect.
I certify that to the best of my knowledge .......... (insert name of
unavailable agent) is unavailable due to ................. (specify
death, resignation, absence, illness, or other temporary incapacity).
I accept appointment as agent under this power of attorney.
This certification and acceptance is made under penalty of perjury.*
Dated: ............
.......................
(Agent's Signature)
.......................
(Print Agent's Name)
.......................
(Agent's Address)
*(NOTE: Perjury is defined in Section 32‑2 of the Criminal Code of 1961, and is a Class 3 felony.)
Co‑agents.
(a) Co‑agents may not be named by a principal in a statutory short form
power of attorney for property under Article III or a statutory short
form power of attorney for health care under Article IV. In the event
that co‑agents are named in any other form of power of attorney, then
the provisions of this Section shall govern the use and acceptance of
co‑agency designations.
(b) Unless the power of
attorney or this Section otherwise provides, authority granted to 2 or
more co‑agents is exercisable only by their majority consent. However,
if prompt action is required to accomplish the purposes of the power of
attorney or to avoid irreparable injury to the principal's interests
and an agent is unavailable because of absence, illness, or other
temporary incapacity, the other agent or agents may act for the
principal. If a vacancy occurs in one or more of the designations of
agent under a power of attorney, the remaining agent or agents may act
for the principal.
(c) An agent is not liable for
the actions of another agent, including a co‑agent or predecessor
agent, unless the agent participates in or conceals a breach of
fiduciary duty committed by the other agent. An agent who has knowledge
of a breach or imminent breach of fiduciary duty by another agent must
notify the principal and, if the principal is incapacitated, take
whatever actions may be reasonably appropriate in the circumstances to
safeguard the principal's best interest.
(d) Any
person who acts in good faith reliance on the representation of a
co‑agent regarding the unavailability of a predecessor agent or one or
more co‑agents, or the need for prompt action to accomplish the
purposes of the power of attorney or to avoid irreparable injury to the
principal's interests, will be fully protected and released to the same
extent as though the reliant had dealt directly with all named agents.
Upon request, the co‑agent shall furnish an affidavit or Co‑Agent's
Certification and Acceptance of Authority to the reliant, but good
faith reliance on a document purporting to establish an agency will
protect the reliant without the affidavit or Co‑Agent's Certification
and Acceptance of Authority. A Co‑Agent's Certification and Acceptance
of Authority shall be in substantially the following form:
CO‑AGENT'S
CERTIFICATION AND ACCEPTANCE OF AUTHORITY
I certify that the attached is a true copy of a power of attorney
naming the undersigned as agent or co‑agent for .......... (insert name
of principal).
I certify that to the best of my
knowledge the principal had the capacity to execute the power of
attorney, is alive, and has not revoked the power of attorney; that my
powers as agent have not been altered or terminated; and that the power
of attorney remains in full force and effect.
I
certify that to the best of my knowledge .......... (insert name of
unavailable agent) is unavailable due to ................. (specify
death, resignation, absence, illness, or other temporary incapacity).
I certify that prompt action is required to accomplish the purposes of
the power of attorney or to avoid irreparable injury to the principal's
interests.
I accept appointment as agent under this power of attorney.
This certification and acceptance is made under penalty of perjury.*
Dated: ............
.......................
(Agent's Signature)
.......................
(Print Agent's Name)
.......................
(Agent's Address)
*(NOTE: Perjury is defined in Section 32‑2 of the Criminal Code of 1961, and is a Class 3 felony.)
Power of attorney executed in another state or country; pre‑existing powers of attorney.
(a) A power of attorney executed in another state or country is valid
and enforceable in this State if its creation complied when executed
with:
(1) the law of the state or country in which the
power of attorney was executed;
(2) the law of this State;
(3) the law of the state or country where the
principal is domiciled, has a place of abode or business, or is a national; or
(4) the law of the state or country where the agent
is domiciled or has a place of business.
(b) A power of attorney executed in this State before the effective
date of this amendatory Act of the 96th General Assembly is valid and
enforceable in this State if its creation complied with the law of this
State as it existed at the time of execution.
755 ILCS 45/2-11
Saving clause. This Act does not in any way invalidate any
agency executed or any act of any agent done, or affect any claim,
right or remedy that accrued, prior to September 22, 1987.
This amendatory Act of the 96th General Assembly does not in any way
invalidate any agency executed or any act of any agent done, or affect
any claim, right, or remedy that accrued prior to the effective date of
this amendatory Act of the 96th General Assembly.
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755 ILCS 45/3-1
Purpose. The General Assembly finds that the public
interest requires a standardized form of power of attorney that
individuals may use to authorize an agent to act for them in dealing
with their property and financial affairs.
A short statutory form offering a set of optional powers is necessary so that the individual may design the power of attorney best suited to his or her needs in a simple fashion and be assured that the agent's authority will be honored by third parties with whom the agent deals, regardless of the physical or mental condition of the principal at the time the power is exercised.
The General Assembly intends that when a power in substantially
the form set forth in this Act is used, third parties who rely in
good faith on the acts of the agent within the scope of the power may
do so without fear of liability to the principal. However, this form
is not meant to be exclusive and other forms of power of attorney may
be used.
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755 ILCS 45/3-2
Short Title. This Article shall be known and may be cited
as the "Statutory Short Form Power of Attorney for Property Law".
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755 ILCS 45/3-3
Statutory short form power of attorney for property.
(a) The form prescribed in this Section may be known as "statutory
property power" and may be used to grant an agent powers with respect
to property and financial matters. The "statutory property power"
consists of the following: (1) Notice to the Individual Signing the
Illinois Statutory Short Form Power of Attorney for Property; (2)
Illinois Statutory Short Form Power of Attorney for Property; and (3)
Notice to Agent. When a power of attorney in substantially the form
prescribed in this Section is used, including all 3 items above, with
item (1), the Notice to Individual Signing the Illinois Statutory Short
Form Power of Attorney for Property, on a separate sheet (coversheet)
in 14‑point type and the notarized form of acknowledgment at the end,
it shall have the meaning and effect prescribed in this Act.
(b) A power of attorney shall also be deemed to be in substantially the
same format as the statutory form if the explanatory language
throughout the form (the language following the designation "NOTE:") is
distinguished in some way from the legal paragraphs in the form, such
as the use of boldface or other difference in typeface and font or
point size, even if the "Notice" paragraphs at the beginning are not on
a separate sheet of paper or are not in 14‑point type, or if the
principal's initials do not appear in the acknowledgement at the end of
the "Notice" paragraphs.
The validity of a power
of attorney as meeting the requirements of a statutory property power
shall not be affected by the fact that one or more of the categories of
optional powers listed in the form are struck out or the form includes
specific limitations on or additions to the agent's powers, as
permitted by the form. Nothing in this Article shall invalidate or bar
use by the principal of any other or different form of power of
attorney for property. Nonstatutory property powers (i) must be
executed by the principal, (ii) must designate the agent and the
agent's powers, (iii) must be signed by at least one witness to the
principal's signature, and (iv) must indicate that the principal has
acknowledged his or her signature before a notary public. However,
nonstatutory property powers need not conform in any other respect to
the statutory property power.
(c) The Notice to
the Individual Signing the Illinois Statutory Short Form Power of
Attorney for Property shall be substantially as follows:
Limitations on who may witness property powers.
(a) Every property power shall bear the signature of a witness to the
signing of the agency and shall be notarized. None of the following may
serve as a witness to the signing of a property power or as a notary
public notarizing the property power:
(1) the attending physician or mental health service provider of
the principal, or a relative of the physician or provider;
(2) an owner, operator, or relative of an owner or operator of a
health care facility in which the principal is a patient or resident;
(3) a parent, sibling, or descendant, or the spouse of a parent,
sibling, or descendant, of either the principal or any agent or
successor agent, regardless of whether the relationship is by blood,
marriage, or adoption;
(4) an agent or successor agent for property.
(b) The prohibition on the operator of a health care facility from
serving as a witness shall extend to directors and executive officers
of an operator that is a corporate entity but not other employees of
the operator.
755 ILCS 45/3-4
Explanation of powers granted in the statutory short form
power of attorney for property. This Section defines each category of
powers listed in the statutory short form power of attorney for
property and the effect of granting powers to an agent, and is
incorporated by reference into the statutory short form. Incorporation
by reference does not require physical attachment of a copy of this
Section 3‑4 to the statutory short form power of attorney for property.
When the title of any of the following categories is retained (not
struck out) in a statutory property power form, the effect will be to
grant the agent all of the principal's rights, powers and discretions
with respect to the types of property and transactions covered by the
retained category, subject to any limitations on the granted powers
that appear on the face of the form. The agent will have authority to
exercise each granted power for and in the name of the principal with
respect to all of the principal's interests in every type of property
or transaction covered by the granted power at the time of exercise,
whether the principal's interests are direct or indirect, whole or
fractional, legal, equitable or contractual, as a joint tenant or
tenant in common or held in any other form; but the agent will not have
power under any of the statutory categories (a) through (o) to make
gifts of the principal's property, to exercise powers to appoint to
others or to change any beneficiary whom the principal has designated
to take the principal's interests at death under any will, trust, joint
tenancy, beneficiary form or contractual arrangement. The agent will be
under no duty to exercise granted powers or to assume control of or
responsibility for the principal's property or affairs; but when
granted powers are exercised, the agent will be required to act in good
faith for the benefit of the principal using due care, competence, and
diligence in accordance with the terms of the statutory property power
and will be liable for negligent exercise. The agent may act in person
or through others reasonably employed by the agent for that purpose and
will have authority to sign and deliver all instruments, negotiate and
enter into all agreements and do all other acts reasonably necessary to
implement the exercise of the powers granted to the agent.
(a) Real estate transactions. The agent is authorized to: buy, sell,
exchange, rent and lease real estate (which term includes, without
limitation, real estate subject to a land trust and all beneficial
interests in and powers of direction under any land trust); collect all
rent, sale proceeds and earnings from real estate; convey, assign and
accept title to real estate; grant easements, create conditions and
release rights of homestead with respect to real estate; create land
trusts and exercise all powers under land trusts; hold, possess,
maintain, repair, improve, subdivide, manage, operate and insure real
estate; pay, contest, protest and compromise real estate taxes and
assessments; and, in general, exercise all powers with respect to real
estate which the principal could if present and under no disability.
(b) Financial institution transactions. The agent is authorized to:
open, close, continue and control all accounts and deposits in any type
of financial institution (which term includes, without limitation,
banks, trust companies, savings and building and loan associations,
credit unions and brokerage firms); deposit in and withdraw from and
write checks on any financial institution account or deposit; and, in
general, exercise all powers with respect to financial institution
transactions which the principal could if present and under no
disability. This authorization shall also apply to any Totten Trust,
Payable on Death Account, or comparable trust account arrangement where
the terms of such trust are contained entirely on the financial
institution's signature card, insofar as an agent shall be permitted to
withdraw income or principal from such account, unless this
authorization is expressly limited or withheld under paragraph 2 of the
form prescribed under Section 3‑3. This authorization shall not apply
to accounts titled in the name of any trust subject to the provisions
of the Trusts and Trustees Act, for which specific reference to the
trust and a specific grant of authority to the agent to withdraw income
or principal from such trust is required pursuant to Section 2‑9 of the
Illinois Power of Attorney Act and subsection (n) of this Section.
(c) Stock and bond transactions. The agent is authorized to: buy and
sell all types of securities (which term includes, without limitation,
stocks, bonds, mutual funds and all other types of investment
securities and financial instruments); collect, hold and safekeep all
dividends, interest, earnings, proceeds of sale, distributions, shares,
certificates and other evidences of ownership paid or distributed with
respect to securities; exercise all voting rights with respect to
securities in person or by proxy, enter into voting trusts and consent
to limitations on the right to vote; and, in general, exercise all
powers with respect to securities which the principal could if present
and under no disability.
(d) Tangible personal
property transactions. The agent is authorized to: buy and sell, lease,
exchange, collect, possess and take title to all tangible personal
property; move, store, ship, restore, maintain, repair, improve,
manage, preserve, insure and safekeep tangible personal property; and,
in general, exercise all powers with respect to tangible personal
property which the principal could if present and under no disability.
(e) Safe deposit box transactions. The agent is authorized to: open,
continue and have access to all safe deposit boxes; sign, renew,
release or terminate any safe deposit contract; drill or surrender any
safe deposit box; and, in general, exercise all powers with respect to
safe deposit matters which the principal could if present and under no
disability.
(f) Insurance and annuity
transactions. The agent is authorized to: procure, acquire, continue,
renew, terminate or otherwise deal with any type of insurance or
annuity contract (which terms include, without limitation, life,
accident, health, disability, automobile casualty, property or
liability insurance); pay premiums or assessments on or surrender and
collect all distributions, proceeds or benefits payable under any
insurance or annuity contract; and, in general, exercise all powers
with respect to insurance and annuity contracts which the principal
could if present and under no disability.
(g)
Retirement plan transactions. The agent is authorized to: contribute
to, withdraw from and deposit funds in any type of retirement plan
(which term includes, without limitation, any tax qualified or
nonqualified pension, profit sharing, stock bonus, employee savings and
other retirement plan, individual retirement account, deferred
compensation plan and any other type of employee benefit plan); select
and change payment options for the principal under any retirement plan;
make rollover contributions from any retirement plan to other
retirement plans or individual retirement accounts; exercise all
investment powers available under any type of self‑directed retirement
plan; and, in general, exercise all powers with respect to retirement
plans and retirement plan account balances which the principal could if
present and under no disability.
(h) Social
Security, unemployment and military service benefits. The agent is
authorized to: prepare, sign and file any claim or application for
Social Security, unemployment or military service benefits; sue for,
settle or abandon any claims to any benefit or assistance under any
federal, state, local or foreign statute or regulation; control,
deposit to any account, collect, receipt for, and take title to and
hold all benefits under any Social Security, unemployment, military
service or other state, federal, local or foreign statute or
regulation; and, in general, exercise all powers with respect to Social
Security, unemployment, military service and governmental benefits
which the principal could if present and under no disability.
(i) Tax matters. The agent is authorized to: sign, verify and file all
the principal's federal, state and local income, gift, estate, property
and other tax returns, including joint returns and declarations of
estimated tax; pay all taxes; claim, sue for and receive all tax
refunds; examine and copy all the principal's tax returns and records;
represent the principal before any federal, state or local revenue
agency or taxing body and sign and deliver all tax powers of attorney
on behalf of the principal that may be necessary for such purposes;
waive rights and sign all documents on behalf of the principal as
required to settle, pay and determine all tax liabilities; and, in
general, exercise all powers with respect to tax matters which the
principal could if present and under no disability.
(j) Claims and litigation. The agent is authorized to: institute,
prosecute, defend, abandon, compromise, arbitrate, settle and dispose
of any claim in favor of or against the principal or any property
interests of the principal; collect and receipt for any claim or
settlement proceeds and waive or release all rights of the principal;
employ attorneys and others and enter into contingency agreements and
other contracts as necessary in connection with litigation; and, in
general, exercise all powers with respect to claims and litigation
which the principal could if present and under no disability. The
statutory short form power of attorney for property does not authorize
the agent to appear in court or any tribunal as an attorney‑at‑law for
the principal or otherwise to engage in the practice of law without
being a licensed attorney who is authorized to practice law in Illinois
under applicable Illinois Supreme Court Rules.
(k) Commodity and option transactions. The agent is authorized to: buy,
sell, exchange, assign, convey, settle and exercise commodities futures
contracts and call and put options on stocks and stock indices traded
on a regulated options exchange and collect and receipt for all
proceeds of any such transactions; establish or continue option
accounts for the principal with any securities or futures broker; and,
in general, exercise all powers with respect to commodities and options
which the principal could if present and under no disability.
(l) Business operations. The agent is authorized to: organize or
continue and conduct any business (which term includes, without
limitation, any farming, manufacturing, service, mining, retailing or
other type of business operation) in any form, whether as a
proprietorship, joint venture, partnership, corporation, trust or other
legal entity; operate, buy, sell, expand, contract, terminate or
liquidate any business; direct, control, supervise, manage or
participate in the operation of any business and engage, compensate and
discharge business managers, employees, agents, attorneys, accountants
and consultants; and, in general, exercise all powers with respect to
business interests and operations which the principal could if present
and under no disability.
(m) Borrowing
transactions. The agent is authorized to: borrow money; mortgage or
pledge any real estate or tangible or intangible personal property as
security for such purposes; sign, renew, extend, pay and satisfy any
notes or other forms of obligation; and, in general, exercise all
powers with respect to secured and unsecured borrowing which the
principal could if present and under no disability.
(n) Estate transactions. The agent is authorized to: accept, receipt
for, exercise, release, reject, renounce, assign, disclaim, demand, sue
for, claim and recover any legacy, bequest, devise, gift or other
property interest or payment due or payable to or for the principal;
assert any interest in and exercise any power over any trust, estate or
property subject to fiduciary control; establish a revocable trust
solely for the benefit of the principal that terminates at the death of
the principal and is then distributable to the legal representative of
the estate of the principal; and, in general, exercise all powers with
respect to estates and trusts which the principal could if present and
under no disability; provided, however, that the agent may not make or
change a will and may not revoke or amend a trust revocable or
amendable by the principal or require the trustee of any trust for the
benefit of the principal to pay income or principal to the agent unless
specific authority to that end is given, and specific reference to the
trust is made, in the statutory property power form.
(o) All other property transactions. The agent is authorized to:
exercise all possible authority of the principal with respect to all
possible types of property and interests in property, except to the
extent limited in subsections (a) through (n) of this Section 3‑4 and
to the extent that the principal otherwise limits the generality of
this category (o) by striking out one or more of categories (a) through
(n) or by specifying other limitations in the statutory property power
form.
Savings clause. This amendatory Act of the 96th General Assembly does not in any way invalidate any property power executed or any act of any agent done, or affect any claim, right, or remedy that accrued, prior to the effective date of this amendatory Act of the 96th General Assembly.
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Please NOTE: Because the Illinois State Legislature may change, amend, or abolish the law without notice, the statute provided here is not guaranteed to be an exact reproduction of the law at this time. The code provided here is for informational purposes only and should not be relied upon before taking any action. Please consult an attorney.
This web site is intended to supply general information to the public. Although the information is generally accurate, it cannot be guaranteed. The nature of Legislation is that laws change quickly, and visitors should always insure that legal information is accurate before relying on it. The above information applies the law of the State of Illinois and City of Chicago. The law in your jurisdiction may be different. This information is necessarily brief and may or may not apply to your situation. In all cases, PLEASE, consult a lawyer before acting.
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