Ten Things to Know about Appointing a Power of Attorney

POA, agency, Naperville Estate Planning AttorneyIllinois citizens have the right to appoint an agent to make property, financial, personal and health care decisions on their behalf. This is called a power of attorney.

The principal will generally specify the event or time upon which the agency will begin and end. He or she will also indicate the mode of revocation or amendment, in addition to the rights, powers, duties, limitations, immunities and other terms applicable to the agent.

I frequently receive questions from clients regarding power of attorney and how it may apply to their situations. Here are ten things you need to know if you want to appoint a power of attorney in Illinois, or if a principal has appointed you as his or her agent:

1.     When the agency exercises a power of attorney, he must act in good faith for the principal’s benefit using due care, competence and diligence. Agents are liable for acting negligently.

2.     The agent must keep a record of all receipts and actions taken under the agency’s authority.

3.     Unless the agency states an earlier termination date, the agency ends when the principal dies.

4.     If you previously appointed a power of attorney but now want to appoint a different power of attorney, the subsequent appointment must specifically revoke the previous appointment. Otherwise, both powers of attorney have authority to act on your behalf.

5.     The principal may alter or take away the power of attorney at any time, if the principal has the capacity to do so. (Note that health care agencies are subject to different rules and regulations).

6.     When the agent makes decisions on the principal’s behalf during periods of incapacity, disability or incompetence, those decisions have the same effect as if the principal were competent and not disabled.

7.     If the principal’s marriage is dissolved, or if the couple legally separates after the agency is signed, the spouse is “dead” for purposes of the agency.

8.     Any interested person (including the agent) may petition the court to construe a power of attorney if the principal lacks the capacity to control or revoke the agency. The court may review the agent’s conduct and grant appropriate relief.

9.     If the court concludes that the agent is not taking actions in accordance with the agency’s terms, then the court may order a guardian of the principal’s person or estate to exercise the powers the principal has under the agency, including the power to the power of attorney.

10. The principal may also designate successor agents in case the predecessor dies, resigns, becomes incapacitated or otherwise declines to serve.

Our Naperville estate planning attorneys have experience acting as agents and crafting power of attorney arrangements. If you are interested in appointing a power of attorney, contact us today for a consultation. We can help you understand your rights and obligations as both a principal and an agent. We can assist those in the Naperville area.