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Estates, Probate & Wills

On June 9, 2000, the Illinois Power of Attorney Act was amended by Public Act 91-790.

The state law changes have two major affects for the lawyer and lay person:

First, a new section has been added to the Power of Attorney Act, requiring the agent acting under a power of attorney, both for property and for healthcare, to provide a record of all receipts, disbursements and significant actions taken by the agent when requested by an investigating agency appointed under the Elder Abuse and Neglect Act, or by a representative of the Office of the State Long Term Care Ombudsman in an investigation of a complaint of financial exploitation of a nursing home resident.

The turnover and disclosure requirement apply only if the principal (i.e., the person giving the power of attorney) is incapacitated. Incapacity, for this purpose, means that the principal fits the definition of a "disabled person" under the Probate Act. Additionally, incapacity can be shown if an attending physician has examined the principal and makes a written record of the principal’s lack of decision making capability within 90 days after the examination, and the determination has been delivered to the agent.

In addition to these changes, the new amendments to the Illinois Power of Attorney Act change the statutory short form Power of Attorney for Property.

The Statutory short form Power of Attorney for Property now requires one additional witness, in addition to the notary public, in order for the POA to be effective. The new form, as amended, also requires the witness to state affirmatively that, in their opinion, the principal is of sound mind and memory.

New forms of Power of Attorney are available through our office and can be executed without much expense or complication. The Power of Attorney for Property is an important part of each person’s estate plan, and should be considered, even when the principal is healthy, because of the impact that the Power of Attorney has in circumstances in which the principal can no longer act on their own.

Remember, the Illinois Power of Attorney Act does not require the use of the statutory form to create a valid Power of Attorney. However, as many of our clients have found, the statutory short form Powers of Attorney form provided by the state of Illinois are convenient, easy to read and understand, and provide little avenue for confusion.

The addition of the attesting witness to the statutory short form Power of Attorney would not be required in a non-statutory Power of Attorney. In these instances, the Power of Attorney that has been made, all other things being sufficient, will be effective as written. If you want to avail yourself of the advantages of the short form Power of Attorney for Property, or you want to discuss whether the Power of Attorney you have made is currently effective under Illinois law, please give Marc Sherman a call at your convenience. He will be happy to answer any questions that you may have.

This article is intended to highlight areas of interest for our clients and others. It is not intended to be legal advice and it is not a substitute for advice and consultation with your lawyer.