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Do I really need a power of attorney in Illinois?
If you want to ensure that your financial needs are met if you become incapacitated, you should have a power of attorney.
A power of attorney allows you to choose someone to make decisions for you. If you do not have one, a court will decide who should care for you when you cannot care for yourself. Court involvement can make an already difficult situation more stressful for your loved ones.
Most people use powers of attorney to prepare for incapacity, but you also can use a power of attorney when you are healthy. For example, you can appoint someone to manage property or handle a transaction for you when you are busy or unavailable.
FindLaw provides everything you need to make your POA:
How it works
The process takes less than an hour, and you can complete it from the comfort of your home.
Create an account
Create a secure account which is accessible through an easy dashboard you can access any time
Gather information
Indicate who your agent will be and what authority you want them to have
Complete your document
Answer all questions, then we’ll generate your digital documents for downloading, printing, and signing
Make it legal
Carefully follow the instructions provided in the form, which may include signing your documents in front of witnesses or a notary
Plan for your future with confidence
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Learn the most common estate planning terms
Understand the essential estate planning tools
Gather critical information with an estate planning checklist
How to get a power of attorney in Illinois
If you want to get a power of attorney that complies with Illinois law, you can hire an attorney licensed in Illinois or you can create one yourself by using a reliable Illinois power of attorney form.
Follow these steps if you want to make your own power of attorney:
Understand how a POA works in Illinois
What is a power of attorney?
A power of attorney is a legal document that allows someone (the principal) to give another person (the agent or attorney-in-fact) the legal authority to make decisions for the principal. A principal can give an agent broad or limited decision-making authority.
In Illinois, there are two main types of powers of attorney: the power of attorney for property and the power of attorney for health care. A power of attorney for property gives an agent authority to manage the principal’s property, money, investments, or personal care.
You cannot use a power of attorney for property to appoint an agent for health care decisions. If you want someone to make health care decisions when you cannot, you need a power of attorney for health care.
What is a power of attorney for health care?
In Illinois, you can use a power of attorney for health care to give an agent the authority to consent to, refuse, or withdraw health care for you when you are incapacitated. A health care power of attorney also will give your health care agent the ability to access your medical records, speak with your doctors, and choose your physician or hospital.
Most people want a health care agent to act only when they are incapacitated. Under the Illinois Power of Attorney Act, you can choose to make your agent’s powers effective immediately, even if you are not incapacitated. However, if you have the capacity to make decisions, you can always overrule your agent if you disagree with them.
Choose the powers to give your agent
You can give your agent broad or limited powers depending on what your needs are. When planning for incapacity, you should consider giving your agents broad enough powers to ensure your bills are paid and health care needs are met.
You can create more than one power of attorney for property. For example, you can create one that gives broad authority to an agent in the event you are incapacitated and another one that gives an agent limited authority to handle one transaction or type of transaction.
Choose your agent
Selecting an agent is an important decision. You should choose someone you trust because every act or decision they make will be legally binding on you. Depending on how much authority you give them, agents also may have access to your bank accounts, credit cards, and property.
Your agent for a power of attorney for property should be good with money and comfortable dealing with banks and financial and legal professionals.
Your health care agent should know you well and understand what kind of health care and quality of life you want. They will be making important decisions about your care under stressful circumstances, so you should talk with them before you select them to see if they want the job and will follow your wishes.
If you have a family member who is a health care provider, they cannot be your health care agent and treat you at the same time under Illinois law.
Finally, you should name one or more successor agents for any power of attorney that will be effective when you are incapacitated. A successor agent will be able to act when your original agent is unable or unwilling to serve.
Find a good form
We offer easy-to-use power of attorney forms that you can download yourself. If you use these forms and follow the instructions, you can create valid Illinois powers of attorney that are tailored to your needs.
The Illinois Power of Attorney Act also contains a statutory short form power of attorney for health care and the Illinois statutory short form power of attorney for property.
Sign your power of attorney document with witnesses
Your power of attorney will not be legally binding if you do not sign it correctly. You must sign both your powers of attorney for health care and property with at least one witness present. Some attorneys recommend two witnesses in case you need to use your power of attorney in a state that requires two witnesses.
A witness cannot be any of the following people:
- Your agent or successor agent
- Your attending physician or mental health service provider, or their relatives
- Owners or operators of any health care facility where you receive care, or their relatives
- Your parents, siblings, or descendants, or their spouses
- Your agent’s or successor agent’s parents, siblings, or descendants, or their spouses
- For powers of attorney for health care: Your advanced practice registered nurse, physician assistant, dentist, podiatric physician, optometrist, or their relatives
You also must sign your power of attorney for property with a notary public present. Illinois law does not require powers of attorney for health care to be notarized, but some attorneys recommend having them notarized, too.
Make sure the right people have a copy of your power of attorney
After you sign your power of attorney, you need to give it to the people who will need it. Your agent should have a copy to prove they have authority to act on your behalf.
You also should give a copy of your power of attorney for property to banks and businesses that you know your agent will deal with. Your primary physician and health care facilities where you receive medical treatment should have a copy of your health care power of attorney.
Note: State laws are always subject to change through the passage of new legislation, rulings in the higher courts (including federal decisions), ballot initiatives, and other means. While we strive to provide the most current information available, please consult an attorney or conduct your own legal research to verify the state law(s) you are researching.
Common questions about powers of attorney in Illinois
The two main types of powers of attorney in Illinois are the power of attorney for health care and the power of attorney for property. There are several types of powers of attorney for property you should be aware of.
Durable power of attorney
A durable power of attorney remains effective when the agent becomes incapacitated. In Illinois, powers of attorney are durable unless they state that they terminate when the principal is incapacitated.
Nondurable power of attorney
Unlike the durable power of attorney, the nondurable power of attorney terminates when the agent is incapacitated. If you want a nondurable power of attorney for property, you should include a statement that it will be terminated when you become incapacitated.
Springing power of attorney
A springing power of attorney does not become effective until a later date or when a specific event, like incapacity, happens.
Be careful using a springing power of attorney for incapacity. Your agent should be able to act immediately when you are incapacitated, so they can pay your bills and take care of your property. Determining incapacity can take time and prevent them from having immediate authority to act. Businesses and banks also may be reluctant to accept your agent’s authority without conclusive proof you are incapacitated.
Limited or special power of attorney
A limited or special power of attorney gives limited authority to an agent. You may want to use this type if you want to give an agent with expertise the power to negotiate a specific deal, such as selling your house or managing your property.
In most cases, you will not need a lawyer for a power of attorney. You should be able to create your own with easy-to-use forms like the power of attorney forms we offer.
However, if you have a hard time choosing an agent or how much power to give them, or you have a complicated family situation, you may want to speak with an attorney licensed in Illinois.
Illinois also has a document called a living will, which allows you to state your wishes for withholding or removing life support. You also can state these wishes in your power of attorney. Under Illinois law, if you make a living will or include your wishes in your power of attorney for health care, your agent can use them as a guide but is not required to follow your wishes.
If you are incapacitated and do not have a power of attorney for health care or your agent is unable to serve, Illinois law has a safeguard in place called a surrogate. A surrogate is chosen in order from a long list of family members and court-appointed guardians and custodians. The surrogate will be able to make decisions as if they were your health care agent.
It is better to have a power of attorney because the surrogate system has a few flaws. The most important one is that a family member who disagrees with your health care wishes could end up making decisions about your health.
An Illinois power of attorney for health care can include the power to make mental health decisions. However, Illinois has another document called a mental health treatment declaration that addresses three types of mental health treatment: electroconvulsive treatment, psychiatric medication, and admission to a mental health facility. A form declaration is in the Illinois statutes.
You can revoke your power of attorney, but you need to make sure you do it the right way for your revocation to be effective.
Revoking a power of attorney for property
You must have capacity to revoke a power of attorney for property. In Illinois, you can revoke your power of attorney by communicating the revocation at any time and in any manner.
Even though you can simply tell your agent the power of attorney is revoked, it is better to sign a written revocation. You may want to consider having your revocation witnessed and notarized, but this is not a requirement.
You also can revoke a previous power of attorney for property by creating a new one, but it must specifically state that it revokes a specific power of attorney or all powers of attorney or your previous powers of attorney will not be revoked.
Finally, you should give copies of the revocation or new power of attorney that revokes old powers of attorney to your agent, banks, and other businesses that dealt with your agent.
Revoking a power of attorney for health care
You can revoke your health care power of attorney at any time even if you lack capacity. You can revoke it by destroying it, signing a written revocation, or telling an adult witness. If you have capacity, sign a written revocation and deliver it to your agent and health care providers to ensure there is no doubt you have revoked your power of attorney.
It can be difficult to discuss aging with your parents, but you should ask your parents what their plans are if they become incapacitated. If they do not have a power of attorney, you can help them create their own by following the steps above but remember that you cannot be a witness to their powers of attorney.
If your parents lack capacity or do not understand what they are signing, you should not help them create a power of attorney. You should speak with an attorney licensed in Illinois who can help you get a guardian appointed for your parents.
You may want to speak with a lawyer if:
- You don’t know who to choose as your agent
- You want to use a POA for Medicaid planning
- You want to discuss which powers you should give your agent
- You want legal review of your completed power of attorney
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