Estates & Powers of attorney

A Power of Attorney (POA) is a legal document that lets people name someone else to make decisions for them. POAs are often used to prepare for future situations when a person may no longer be able to make these types of decisions for themselves. The person for whom the decisions are made is the “principal”. The person selected to make decisions for the principal is the “agent”.

The two most common types of POAs used in Illinois are:

• POA for property (used for financial decisions), or
• POA for health care (used for health care decisions).

A POA for property is a legal document that lets a principal” choose a specific person, their “agent”, to act on their behalf and in their best interest for purposes of transacting business, managing money  and making financial decisions. A POA for health care allows a principal to name someone to make medical decisions for them, work with their medical providers, and access their medical records.

Learn more about POAs for property and POAs for health care.

An agent is empowered to make decisions on behalf of the principal, within the limits stated in the POA document. Once an agent has the power to act on the principal’s behalf, agents must put the principal’s welfare and interests first. The agent is required to make decisions in accordance with the principal’s wishes, when they are known. If the principal can no longer make decisions, and their wishes are unknown, the agent must act in the principal’s best interests. Agents must act in good faith, An honest effort to do something for the benefit of the principal. They must use due care, competence, and diligence.

Agents for POA property and POA health care have different powers and responsibilities.

Generally, an agent must be:

• Over the age of 18,
• Able to make their own decisions and not found to be disabled by a court, and
• Someone other than the principal’s primary healthcare provider (i.e. doctor or caregiver) or the owner of the facility where the principal resides for a health care POA. 

Some paid caregiver agreements do not allow caregivers to act as agents under POAs. 

Agents should be someone the principal knows well and who they trust. An agent should be someone who is willing to do what the principal would want, rather than substituting the agent’s judgment. An official decision by a court that ends the dispute between parties

Before naming someone as their agent, a principal should contact that person to confirm the proposed-agent is willing to serve Giving court documents to someone in that role. Agents do not have to act just because they are named. People should make sure the agent is willing to accept the responsibility of being their agent and to take action when needed.  People should carefully discuss the agent’s responsibilities and their wishes related to the power of attorney. These steps will help ensure that the agent follows the principal’s instructions and makes decisions that are based on the principal's wishes.

No, the agent does not have to be someone in the principal’s family. Many people pick a family member to act as their agent. However, the agent can also be a:

• Friend,
• Unmarried partner,
• Trusted advisor, or
• Neighbor, or
• Any other qualified individuals in the principal's trusted network.

The agent you appoint doesn’t have to be local. The agent doesn't even have to be a resident of Illinois. However, in the event of an emergency, it is helpful if the agent lives nearby.

No, a principal cannot have more than one agent acting at the same time under either type of POA. In Illinois, a principal can name one or more successor agents in a POA to act if the first agent dies, resigns, or otherwise can’t make decisions for the principal. Naming successor agents is generally a good idea because sometimes an agent becomes sick and can't handle decisions for the principal. Or, the agent could decide they do not want to handle the decisions.

The term “durable power of attorney” is not used in Illinois law. In other states, some call their POAs “durable” POAs when they are designed for the agent to keep decision-making power when the principal loses their capacity to act. In Illinois, POAs can be written to give an agent power when a person loses their decision making ability. The document itself is just not called a “durable power of attorney.” It’s just a “power of attorney.”

Yes. Learn more about revoking powers of attorney.

In Illinois, agents have to keep certain records about their role, like receipts for how they have spent the principal's money and records for any property transferred or disposed of. If asked, agents have to give those records to:

• The principal, the principal’s guardian, or the executor Person in charge of giving out the property left in a will or administrator of the probate A court process where a person's property is given out after they die estate All of the property a person owns at their death if they are deceased,
• Certain government actors, like the public guardian or the Office of the State Guardian, or
• The court.

Getting records from the agent can help determine if there is fraud The deception of someone(s) with intent to cause damage (not including  forgeries and counterfeiting). or abuse.

If an agent commits fraud, The deception of someone(s) with intent to cause damage (not including  forgeries and counterfeiting). exerts undue influence, or violates their duty A legal obligation to do something of care, there are many remedies available. These remedies include:

• Revocation,
• Asset recovery,
• Demanding an accounting,
• Seeking guardianship, When a person is appointed by a judge to take care of a child or an adult with a disability or
• Order of Protection A document from a judge that tells an abuser to stop further domestic abuse, or face penalties .

Victims of POA fraud can file a civil suit under a number of Illinois state laws, including:

• Illinois Adult Any person 18 years old or over Protective Services Act,
• Nursing Home Care Act, or
• the Financial Exploitation of an Elder or Person with a Disability A substantial impairment that functionally limits a person in carrying out major life activities, such as walking, lifting, seeing, or learning. statute.  

Also, there may be criminal penalties for an agent’s violations. 

To report suspected abuse, neglect, When a person acts with less care or caution than a regular person would have in the same situation or exploitation of an older person, call the Illinois Adult Protective Service Hotline at (866) 800-1409.

No, people can create powers of attorney on their own. People must follow the statutory rules for drafting and executing the documents required to ensure that they are valid when needed.

You can use our Power of Attorney easy form programs for property and for health care to create one yourself.

Estate All of the property a person owns at their death planning can get complicated, though. If you’d like to speak with a lawyer, Someone who represents clients in courts or who gives legal advice you can use Get Legal Help to find one near you.