Power of attorney is an essential part of late-life planning. This is a key tool for anticipating health care issues, protecting yourself against mental decline and helping your future executor begin estate management. This is also a highly state-specific issue. Every state recognizes some form of power of attorney and most, if not all, share the same general principals. However the details can differ significantly across jurisdictions, so it’s important to make sure you understand how power of attorney works where you live. Here’s what you need to know about creating a power of attorney in Illinois.
A financial advisor can work with you in creating an estate plan for your specific needs.
What Is Power of Attorney
Power of attorney is what lawyers call an assignment of agency. When you give someone your power of attorney, they have the authority to act on your behalf in legal, financial and medical matters. As your agent they can sign contracts on your behalf, execute financial transactions, access documents, buy or sell property and more, all with the same authority and consequences as if you had acted personally. There are some restrictions, for example your agent cannot change your will, but they are rare.
Power of attorney is useful for situations where you are unavailable or unable to act for yourself. For example, it’s common to give your accountant power of attorney so that they can communicate with the IRS on your behalf. Or you can assign power of attorney during a medical procedure, allowing your agent to make decisions on your behalf while you’re unconscious.
You can specify the scope of a power of attorney assignment. Your agent only has the authority you give them and cannot act outside of this grant. In our case above, for example, your accountant could receive tax documents from the IRS but could not take out a loan on your behalf. If you do not specify a scope for this grant it is known as “general power of attorney.” Typically in this case state law will grant your agent the authority to make any permissible legal and financial decisions but will not apply the grant to medical decision-making.
How Power of Attorney Applies in Illinois
Power of attorney in Illinois has few significant departures from common practice. As a result, there are no particular benefits or drawbacks to using a power of attorney in Illinois as compared with most other states.
In this state, a legal and financial power of attorney is known as a “power of attorney for property.” A medical power of attorney is known as a “power of attorney for health care.”
Medical power of attorney in Illinois allows your agent to make decisions when you are incapacitated, which in most cases refers to a state of being unconscious or non-responsive. In this case, your agent can make any decisions that you cannot make for yourself. Medical power of attorney does not generally apply to situations of mental incapacity (that is, when you are unable to safely or competently manage your own affairs). Mental incapacity is rather a form of power of attorney for property assigned by a joint legal and medical finding.
A power of attorney for property is allowed to make both legal and financial decisions on behalf of their principal. This can include, but is not limited to financial transactions, real estate transactions, personal property transactions and registration, signing legal documents, entering contracts, handling litigation and lawsuits, taking or repaying loans, and tax interactions.
Illinois recognizes “minor power of attorney,” in which you give someone the authority to act as the guardian for a minor on your behalf. The state also recognizes both durable and springing power of attorney. Durable power of attorney means that your agent can continue to act if you are in capacitated. Unless you specify otherwise, Illinois presumes that any power of attorney grant is durable, although in all cases power of attorney ends with your death. This is an exception to common practice, as many jurisdictions automatically end a power of attorney if you’re incapacitated.
Springing power of attorney takes effect when a certain condition is met and can end when that condition ends.
How to Assign and Revoke Power of Attorney in Illinois
Assignment is one area where Illinois differs from many peer jurisdictions. You must assign power of attorney in writing, using a document that contains statutorily-mandated disclosures. In practice that typically means that you must use forms provided either by the state or a lawyer to make sure that your grant of authority is valid.
As in all states, you must be legally competent to assign a power of attorney. Minors cannot do this, nor can individuals who are mentally incapacitated. Mental incapacitation is a legal finding and can be determined retroactively. If a judge decides that you were legally incompetent when you made the grant, your power of attorney will be nullified and all actions made by your agent will be unwound. You can also only assign power of attorney to a legally competent adult.
You must sign and date the document giving someone power of attorney. It must also be signed by at least one witness and notarized by a public notary. The witness and notary must be different individuals. Your agent(s) cannot be a witness nor, typically, can a direct family member or spouse, or any direct family member or spouse of your agent(s).
The power of attorney forms provided by Illinois list out a range of specific authorities that you can grant to your power of attorney. If you use this form you must eliminate authority that you do not wish to grant. That is to say, any authority that you do not strike out will be deemed granted. If you do not strike out any listed authorities you will grant your agent general power of attorney.
As with most, if not all, states, you should send a copy of the assignment to any third parties that your agent will interact with. This can include banks, lawyers, tax agencies, registrars of deeds or other entities based on your grant of authority.
You can revoke power of attorney “at any time and in any manner” Illinois. Unless specified otherwise in your assignment, power of attorney continues until you revoke it or until you or your agent(s) die.
Power of attorney is a grant of authority for someone else to make legal, financial or medical decisions on your behalf. Illinois applies this concept similarly to most states, with the notable exception that durable powers of attorney are the default and assignments must be witnessed and notarized. If you are looking to set up a power of attorney for yourself, consult a lawyer to determine the right options for you.
Estate Planning Tips
- Required or not, it’s almost always a good idea to use a formal power of attorney form. If nothing else, this document will help make sure you address issues like expiration, durability and scope.
- A financial advisor can help you build a comprehensive estate plan. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
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