Power of Attorney for Property in Illinois

What you need

Gather these before you sign.

• The Illinois Statutory Short Form Power of Attorney for Property. It has three parts: a notice to you, the form itself, and a notice to the agent.
• The name and address of your agent, and the names of any successor agents.
• A witness who is allowed to serve under the Act. A second witness is optional.
• A notary public, who is a different person from the witness.
• Copies of the finished document for your agent, your bank, and your files.

What the statutory short form covers

The statutory form is in section 3-3 of the Illinois Power of Attorney Act. The notice to the person signing must be on a separate sheet in 14-point type. The form lists 15 categories of power, from real estate transactions and financial institution transactions to tax matters, business operations, and borrowing. You strike out any category you do not want your agent to have. Failing to strike a category grants it.

You can add limits, such as a ban on selling a particular property. The statute says striking categories or adding limits does not take the form outside the statutory format.

You can name successor agents, but you cannot name co-agents on this form. The notice also warns that the form does not require your agent to act, so the person you choose should agree to take the job.

How to sign it: one witness and a notary

Section 3-3.6 says every property power must bear the signature of a witness to the signing and must be notarized. The form's own note adds that the notary may not also sign as a witness. Illinois requires only one witness, though the form leaves room for a second.

Section 3-3.6 also lists who cannot act as the witness or as the notary:

• your attending physician or mental health provider, or a relative of that physician or provider;
• an owner, operator, or relative of an owner or operator of a health care facility where you are a patient or resident;
• a parent, sibling, or descendant of you or of your agent or successor agent, or the spouse of any of them, whether by blood, marriage, or adoption;
• your agent or successor agent.

The easiest approach is a friend or coworker as the witness, with the notary at the same signing. Signing in front of both at once matches the form's certificates.

When it starts and how long it lasts

Section 2-5 says that unless the document sets an earlier end date, the agency continues until your death, even if you become disabled or a guardian is appointed. The form's notice says that unless you limit the time, your agent may use the powers throughout your lifetime, both before and after you become incapacitated.

This durability is why the document is worth having. If you cannot sign, your agent can keep paying bills and managing accounts without a court case. Without a power of attorney, a family may need to ask a court to appoint a guardian, which is covered on the adult guardianship page.

Choosing an agent and keeping them honest

Your agent controls your money, so choose someone you trust and who can keep records. Under the Notice to Agent, the agent must act in good faith, keep a complete record of receipts and spending, avoid conflicts of interest, and keep the agent's funds separate from yours. The notice also says a court can remove an agent who is not acting properly. You can name a backup in case the first agent cannot serve.

The form does not allow your agent to appear in court as a lawyer unless the agent is licensed to practice law in Illinois.

Changing it, ending it, and divorce

You can amend or revoke a power of attorney at any time while you have capacity, in any manner communicated to your agent or to another person who has a part in the subject. Signing a new one does not cancel an older one unless the new one says so. Say it plainly in the new document, and tell your bank.

Section 2-6(b) covers divorce. If a court enters a judgment of dissolution or legal separation after you sign, your spouse is treated as having died at the time of the judgment for all purposes of the document. A spouse named as agent loses the role, so name a replacement.

Reviewed by Jeff McCarthy, Attorney, Inspired Law Group, 136 E 9th St, Lockport, IL 60441.