The Illinois Power of Attorney Act (755 ILCS 45/1-1 et seq.) permits individuals to appoint agents to manage the principals' property and to make personal and healthcare decisions for the individuals. Powers of attorney are important as they enable your agent to act on your behalf throughout your lifetime, including any periods of disability. That said, once properly drafted powers of attorney are in place, you retain time to consider your other options and control your affairs. However, if you lose your ability to enter into a contract (i.e. because of a mental incapacity) before executing durable powers of attorney, then you have a problem.
A principal can specify in the powers of attorney the event or time that the powers will begin or terminate. For example, principals might choose to specify that powers will not become effective until a physician, or their personal physician, certifies that they no longer possess the capacity to make decisions for themselves. However, if the principal does not so specify, the powers will be effective immediately and will last until the principal's death.
An agency under a property power of attorney 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. With regard to a healthcare power of attorney, it can be revoked by the principal at any time, without regard to the principal's mental or physical condition.
Once power of attorneys are drafted it is important to note that, although powers of attorney are subject to much publicity and criticism for their very real potential for abuse by unscrupulous agents, they will not enable honest and well-intentioned agents to force impaired principals to leave even a residence that is unsafe for them and move to a more suitable residence or facility. Nor, by themselves, will powers of attorney enable agents to take over the financial affairs of impaired principals who are still able to object to their doing so. As such, although powers of attorney are powerful instruments that enable agents to act and make decisions for their principals, they do not divest principals of the right to make their own decisions as long as they possess the capacity to do so.
In order to facilitate cooperation of a financial or healthcare facility, it is recommended that the principal make copies of their powers of attorney and immediately take them to their bank, their broker, and their physicians, so that those entities will all be aware that they have executed powers of attorney and who the agents are.
A properly drafted power of attorney merely facilitates the agent's job when necessary, however, it does not allow the agent to act when the principal is refusing the assistance. If a principal is resisting, for example, admittance into an assisted living center or nursing home, this can only be done by obtaining a guardianship and obtaining a court order permitting the placement of the ward in a residential facility.
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Cynthia Garcia, an associate in our Chicago office, practices in several areas including banking law and finance, real estate, estate planning, wills and trusts, and corporate law. Ms. Garcia is fluent in Spanish and is an active member of the Hispanic Lawyers Association of Illinois. If you have any questions regarding this article, of if you have trust or estate questions for you or your family, please contact Cynthia at 312-540-7608, or via cgarcia@querrey.com.
