Illinois Power of Attorney Act
755 ILCS 45 ILLINOIS POWER OF ATTORNEY ACT
Note: Included here are portions of Articles I, II and III of the
Illinois Power of Attorney Act. A version containing only the
Illinois statutory short form durable power of attorney for property
form can be found
here. Article IV
pertaining to Powers of Attorney for Health Care can be found
here.
A version containing only the Illinois statutory durable power of
attorney for healthcare can be found
here.
ARTICLE I - SHORT TITLE.
Sec. 1-1. This Act shall be known and may be cited as the "Illinois Power of Attorney Act".
ARTICLE II - DURABLE POWERS OF ATTORNEY.
Sec.
2-1. Purpose. The General Assembly recognizes that each individual has
the right to appoint an agent to deal with property or make 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 be sure 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 to, among other things, expand its
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.
Sec. 2-2. Short Title. This Article shall be known and may be cited as the "Durable Power of Attorney Law".
Sec. 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.
(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.
Sec. 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.
(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 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, by Sections 4-1 through 4-9 and Section 4-11 of Article
IV, and by all other general provisions of this Act, except to the
extent the terms of the agency are inconsistent with this Act.
Sec.
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 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.
Sec.
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.
Sec. 2-7. Duty -
standard of care - record-keeping - exoneration. 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 use due care to act for
the benefit of the principal 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 keep a record of
all receipts, disbursements, and significant actions taken under the
agency. 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.
Sec. 2-7.5. Incapacitated principal.
(a) This Section shall apply only to an agent acting for a principal
who is incapacitated. A principal shall be considered incapacitated if
that individual 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
its branches has examined the principal and has determined that the
principal lacks decision making capacity; and (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 that written record.
(b) An agent shall
provide a record of all receipts, disbursements, and significant
actions taken under the authority of the agency when requested to do
so: (i) by 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;
(ii) by 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; or (iii) by 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.
(c)
If the agent fails to provide his or her record of all receipts,
disbursements, and significant actions within 21 days after a request
under paragraph (b), 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.
Sec.
2-8. Reliance on document purporting to establish an agency. 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 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. 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. 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.
Sec. 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.
Sec. 2-10.
Agency-court relationship. 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 the
capacity to control or revoke the agency: (a) 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; or (b) 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. 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. 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
resides or, if the agent does not reside in Illinois, then in any
county.
Sec. 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.
ARTICLE III. STATUTORY SHORT FORM POWER OF ATTORNEY FOR PROPERTY.
Sec.
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.
Sec. 3-2. Short
Title. This Article shall be known and may be cited as the "Statutory
Short Form Power of Attorney for Property Law".
Sec. 3-3. Statutory short form power of attorney for property.
Click here for a copy of the form and powers granted.
Sec.
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. 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 use due care to act for the
benefit of the principal 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.
Click here for a copy of the form and powers granted.
DISCLAIMER:
Please Note: this page contains portions of the statutory text of the
Illinois statute for Powers of Attorney for Property. The law is
constantly changing and this text may not be the most up to date.
This information is not suitable for any State other than the State of
Illinois. No representations or warranties are made as to the
completeness or accuracy of the information contained on this
page. Please consult a lawyer before taking ANY action.