A permanent POA allows someone to help you with your financial affairs if you ever become disabled—here's how to create one in Illinois.
If you want someone to deposit your checks in your bank, file your taxes, or even sell or mortgage your home, you can create a handy document called a Power of Attorney. A POA is a simple document that gives someone you trust -- known as an "agent" or "authorized representative" -- certain powers to do certain things for you.
- What types of powers of attorney exist in Illinois?
- What are the legal requirements of a financial POA in Illinois?
- Steps to Obtaining a Financial Power of Attorney in Illinois
- Who Can Be Appointed as a Power of Attorney (Attorney) in Illinois?
- When does my permanent financial POA take effect?
- When does my financial power of attorney end?
What types of powers of attorney exist in Illinois?
In Illinois, you can create different types of POAs. In particular, many probate plans include two POAs:
- a financial POA (also called a “real estate POA” in Illinois) that allows someone to manage your financial or business affairs, and
- a healthcare POA that allows someone to make medical decisions on your behalf. (This document goes by different names by state and in Illinois is called a “permanent power of attorney for health care.”)
In most probate plans, both POAs are what are known as “permanent” POAs, meaning they remain effective even if you become incapacitated. For most people, creating these two documents is a good idea because they help prepare for the unexpected.
For more information on other types of POAs, including non-permanent (limited) and resilient POAs, seeWhat is a Power of Attorney?. Below is how to create a permanent financial POA valid in Illinois.
What are the legal requirements of a financial POA in Illinois?
In order for your POA to be valid in Illinois, it must meet certain requirements.
Intellectual ability to create a POA
The person issuing a power of attorney must be of sound mind, but the precise outline of this requirement of mental fitness is subject to interpretation by Illinois courts. If you are helping someone create a POA and you are unsure whether the person has the required mental capacity, you should consult an attorney.
Witness testimony and notarial certification
To create a POA in Illinois, you must sign the POA in the presence of a notary public and at least one witness. The notary cannot appear as a witness. In addition, the following people cannot be your witness:
- Your doctor or mental health provider (or a relative of the doctor or provider)
- an owner or operator of a healthcare facility where you are a patient or resident (or a relative of the owner or operator)
- a parent, sibling, child or grandchild (or a spouse of any such person) of you or any of your agents or successors
- the person or persons you have designated as agent or successor agent in your POA.
Fig. Comp. Stat. 45/3-3.6. These rules help keep your witnesses disinterested — meaning they are unlikely to have ulterior motives when witnessing your signature.
In addition, Illinois requires that certain language (including warnings and notices) be included in the POA. If you create your power of attorney using a legal form, reputable software program, or local attorney (see “Steps to Creating a Financial Power of Attorney” below), the resulting power of attorney should automatically include the required language.
Steps to Obtaining a Financial Power of Attorney in Illinois
1. Create the POA using a legal form, software or a lawyer
Illinois provides a statutory form (a form designed by the state legislature) with blanks that you can fill in to create your POA. For a more user-friendly experience, you can try a software program likeWillMaker, which guides you through a series of questions to arrive at a POA that meets your specific goals and is valid in your state. You can also hire an Illinois attorney to create a POA for you. Many attorneys will include permanent POAs as part of a broader probate plan alongside a will or living trust.
The process of creating your Illinois POA involves reviewing a list of powers to be granted to your agent. For example, you will find that your agent has the authority to:
(a) Real Estate Transactions
(b) Transactions by Financial Institutions
(c) Stock and Bond Transactions
(d) Transactions involving tangible personal property
(e) Locker Transactions
(f) Insurance and Annuity Transactions
(g) The Pension Plan Transaction
(h) Social Security, Employment and Military Services
(i) Tax Matters
(j) Claims and Litigation
(k) Commodity and Options Transactions
(l) Business Operations
(m) Credit Transactions
(n) Estate Transactions
(o) All other real estate transactions
If you use a form, you'll likely need to cross out any specific powers you don't want your agent to have. otherwise, your entire representative has the ability to act on your behalf in all of these areas. If your circumstances require further customization, there is usually also a section in your POA that allows you to further limit or expand the powers you grant your agent.
In Illinois, yourBy default, the Power of Attorney is permanent (meaning it remains in effect after you are incapacitated) unless you specifically state otherwise in the document.
2. Sign the POA in the presence of a notary
As mentioned earlier, you cannot just sign the document and get rid of it. In Illinois, you must notarize the POA and have it certified by at least one person who meets the requirements listed above.
3. Keep the original POA in a safe place
When you have completed the POA, keep the original in onesafe placethat your loved ones can access it easily and let them know where to find it. (It won't do much good if you lock it in a safe that nobody has access to.) If you become incapacitated, your agent may need the original POA to act on your behalf.
4. Give a copy to your representative or agent
You should also provide a copy of the Power of Attorney to your authorized representative so that they are familiar with the contents of the document.
5. Submit a copy to the deed register
If you have authorized your agent to conduct real estate transactions, you should also submit a copy of your POA to the Recorder of Deeds for the county in which you own real estate. This allows the record clerk to recognize your agent's powers if your agent ever needs to sell, mortgage or transfer property for you.
6. Consider giving a copy to financial institutions
You can also give copies of your permanent financial POA to banks or other institutions that your agent may need to do business with in the future. This step can save your agent some trouble if they ever need to use the POA. Banks can sometimes be picky about accepting POAs; seeCan banks refuse a power of attorney?for more details.
Who Can Be Appointed as a Power of Attorney (Attorney) in Illinois?
You can legally appoint any competent adult as your representative. However, you should take into account certain practical considerations, such as the person's trustworthiness and geographic location. For more information on agent selection, seeWhat is a Power of Attorney?.
In Illinois, you can appoint co-agents who are authorized to act at the same time. However, if you, your software, or your attorney use the legal form, you will find that there is only room for one agent. In order to minimize potential conflicts, it is advisable to limit yourself to just one agent anyway. However, it's always a good idea to designate a "successor" - a backup agent who becomes your agent if your first choice isn't available for some reason - as this creates a backup plan.
When does my permanent financial POA take effect?
In Illinois, your POA will state the effective date. It is quite common for the POA to take effect immediately once it is signed, notarized and authenticated.
It is possible to create a condition that must be met before the POA will take effect - such as a doctor declaring you unfit for work - but there are reasons for this“springy” power of attorneyis usually not recommended.
When does my financial power of attorney end?
Any power of attorney ends automatically upon your death. A permanent POA also ends when:
- OfwithdrawEs.If you are mentally competent, you can revoke your document at any time.
- There is no agent available.To reduce the likelihood of this happening, you can designate a successor (substitute) representative in your document.
- A court declares your document invalid.It's rare, but a court can invalidate your document if it concludes that you were not mentally competent at the time you signed it or that you were the victim of fraud or improper influence.
Additionally, in Illinois, if your spouse is named as your representative on your POA, that designation will automatically end upon your divorce. To be clear, your ex-spouse's powers to act as your representative end, but your power of attorney agreement remains in effect. So if you name a successor agent, that person would become your agent instead.
For more information on Illinois estate planning issues, see our sectionEstate planning in Illinois.