Are you afraid to do this alone? You may be able to get free legal help.
powers of attorney
A Power of Attorney (POA) is a legal document that allows you to designate a person to make decisions for you. They often serve to prepare you for future situations in which you will no longer be able to make such decisions yourself. In this relationship, you are the client or the person for whom the decisions are being made. The person you choose to make the decisions for you is the agent.
There are two different types of POAs:
- For property (used to make financial decisions) or
- For healthcare (used for healthcare decisions).
You can make these documents as comprehensive or as limited as you like. You can achieve this by giving the agent the power to make many or few decisions.
Who can be an agent?
In general, an agent must be:
- over 18 years old,
- able to make their own decisions,
- Younger and healthier than you and
- Someone other than your primary healthcare provider (i.e. your doctor or caregiver).
It is important to note that some paid care contracts do not allow caregivers to act as intermediaries under POAs. Many people choose a family member to be their agent. However, you don't necessarily have to choose someone from your family. Your agent can also be a:
- unmarried partner,
- Trusted Advisor
The important thing is that you choose someone you know well and trust. The person must be willing to act for you if you need help with your financial or medical problems. Before appointing your agent, you should contact that person. Confirm that he or she is willing to trade for you. You should also carefully discuss the agent's responsibilities and your medical philosophy. These steps ensure that your agent follows your instructions and makes decisions that are in line with your wishes.
The agent you appoint does not have to be on site. The agent doesn't even have to be an Illinois resident. However, in an emergency it is helpful if the agent lives nearby.
You cannot have more than one agent acting at a time. If you want to designate more than one agent in Illinois, you must make one of them your primary agent. If that agent dies or can no longer make decisions for you, your second agent (the "successor agent") will act for you.
Agents don't have to act just because they're named. Therefore, you want to make sure the agent is willing to accept the fee and take action. As explained above, it is important to ensure that your agent understands the appointment.
Once the agent begins acting on your behalf, your welfare and interests must come first. For example, if the agent is managing your finances, he or she must be able to provide receipts and records of all transactions.
Agents must manage your accounts and property as if they were in your skin. When agents act appropriately, they are not financially responsible for your affairs.
Power of Attorney for Property
The Illinois Power of Attorney Act sets out the transactions that agents are allowed to administer. As part of a real estate POA, agents can:
- Buy, sell, rent or lease real estate or other assets,
- checking bank accounts (including paying bills),
- Contribute to or withdraw from a retirement plan,
- Handle any type of insurance or pension scheme,
- handle tax matters,
- buy and sell shares,
- check lockers,
- Hire an attorney to file or defend lawsuits.
- Lead a company,
- borrow money and mortgage property;
- Manage an estate and
- Manage Social Security, unemployment, and military benefits.
However, your assignee may not make a gift or change beneficiaries without express permission. Also, your proxy can never sign or amend your will.
The notice to the agent under the real estate POA states that the agent has the following responsibilities:
- do with the client's property what the client reasonably expects the agent to do,
- Act in good faith in the best interests of the client and use due care, skill and conscientiousness.
- Maintain full and detailed records of all receipts, disbursements and significant actions taken on behalf of the client.
- Try to preserve the principal's estate plan, and
- Work with the person authorized to make healthcare decisions for the client – this may be the Healthcare Commissioner.
The Notice to the Agent under the Real Estate POA states that the Agent shall not:
- engage in conflicts of interest,
- Act beyond the authority granted in the POA for property,
- Borrowing from the principal, unless authorized to do so, or
- Continue to act on behalf of the principal after he learns that the authority has expired (in the event of the death of the principal, the revocation of his duties, the dissolution of the marriage).
You can use ourPower of Attorney for Real Estate Programto create the forms.
Power of Attorney for Healthcare
An agent with a healthcare POA can make healthcare decisions for you. This includes ordering or refusing health care measures or stopping treatment. The agent can also:
- Talk to doctors or other healthcare providers about your condition,
- View medical records and approve who else can see them.
- Grant permission for medical testing, medication, surgery, or other treatment.
- Choose where you receive care and who provides it.
- Accept, withdraw, or refuse treatment designed to keep you alive when you are near death or unlikely to recover.
- If you decide to donate an organ or a whole body, if you have not yet made this decision yourself,
- Decide what to do with your remains if you haven't already made plans
- Talk to loved ones to make a decision.
It is important that your healthcare POA reflects your specific personal and healthcare preferences. You can indicate your preferences by limiting the choices an agent can make for you. For example, if certain types of treatment are against your religion, you can indicate in your POA that the agent cannot consent to those treatments.
You can use ourPower of Attorney for Health Programto create the forms.
Choose an agent you trust
By properly selecting an agent and completing the POA documents, you can avoid future pressure from people who may not have your best interests in mind. Choosing an agent you trust can be the most important step in making sure your wishes are followed. It can also help prevent future exploitation.
A real estate POA can take effect immediately unless you limit the time period. When the POA is effective, there are certain duties that limit the agent's ability to act. For example, your agent has a duty to act in your best interest. This means that the agent will either act after you are no longer able to make your own decisions, or the agent will act after you specifically tell them to act. An agent who acts before these times is in breach of his duties. To further protect yourself, you may want to limit the valid period of the document. In addition, you should choose an agent that you know will not act until it is appropriate. You can also add other restrictions to the document. For example, you can specify that the POA is only valid if your doctor informs you that you can no longer make your own decisions. In general, without a real estate POA, no one can handle financial matters on your behalf.
Similar considerations apply to a healthcare POA. Serious illnesses and accidents are unpredictable. By planning ahead, you can ensure you receive the medical care you want. You should choose an agent to make decisions on your behalf that reflect your personal values and desires. Although the idea behind these documents is for your agent to make decisions as you would have made them, the law allows your agent to make decisions, order or refuse medical intervention, or discontinue treatment. Properly completed POAs do not expire if you lose the legal capacity to make decisions. Therefore, it is important to know that your agent will accommodate your requests.
Although you can revoke a healthcare POA at any time, you can only revoke a real estate POA if you continue to have the opportunity to make your own decisions. Additionally, both types allow you to sign new documents appointing a new agent only if you have the ability to sign new documents. Therefore, it is best to consider the consequences of withdrawing before taking these steps. It is possible to postpone the cancellation by 30 days after you have communicated your intention to cancel.
fraud and abuse
One of the main reasons for drafting and signing a POA is to avoid abuse if you are unable to make your own decisions in the future. However, should fraud, improper influence or breach of duty of care by an agent occur, numerous remedies are available. These remedial actions include:
- asset recovery,
- ask for an accounting
- guardianship, or
- protective order.
If you are the victim of a POA scam, a civil lawsuit may be filed under a number of Illinois state laws, including:
- Illinois Adult Protective Services Act,
- Nursing Home Care Act, or
- Financial exploitation of an elderly person or a person with a disability.
In addition, violations by the agent can be prosecuted. The best way to protect yourself is to make the right plans and decisions ahead of time. Signing a POA can be one of the best ways to protect against future potential neglect or abuse should you lose the ability to make personal decisions. A POA gives you great security, knowing that your wishes will be met. You can also rely on your instructions being followed if you lose the ability to make your own decisions.
Think carefully about signing a POA and naming an agent. Remember that your agent usually acts when you are most vulnerable and unable to make decisions yourself.