How to Make a Power of Attorney in Illinois FAQ

What Is a Power of Attorney?

A financial power of attorney (POA) is a legal document that you make as the “principal” to put someone else in charge of your money, property, and other financial matters as your “agent.” You determine when you benefit from a power of attorney – either immediately or when you can no longer make financial decisions due to incapacity. Your agent has a fiduciary duty to act in your best interest. For medical decisions, you need to make a power of attorney for health care.

Who Can Be My Agent?

You decide who you want to serve as your agent. Your agent can be a family member, friend, accountant, attorney, or trust company. Make sure you name someone you trust because your agent can access your bank accounts, bind you to contracts, and do anything you authorize them to do.

What Can My Agent Do in Illinois?

A power of attorney gives your agent broad authority to act on your behalf. In Illinois, you decide what powers to give your agent. These powers may include handling your:

• Real estate transactions
• Financial institution transactions
• Stock and bond transactions
• Tangible personal property transactions
• Safe deposit box transactions
• Insurance and annuity transactions
• Retirement plan transactions
• Social Security, employment, and military service benefits
• Tax matters
• Claims and litigation
• Commodity and option transactions
• Business operations
• Borrowing transactions
• Estate transactions
• All other property transactions

In your power of attorney, you can also grant or limit powers concerning the following:

• Create, fund, amend, revoke, or terminate a living trust
• Make a gift
• Create or change rights of survivorship
• Create or change a beneficiary designation
• Authorize another person to exercise the authority granted under this power of attorney
• Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan
• Exercise authority over the content of electronic communications sent or received by the principal
• Exercise fiduciary powers that the principal has authority to delegate and that are expressly and clearly identified
• Renounce an interest in property, including a power of appointment

These powers listed above can reduce your estate, so carefully consider what powers to grant your agent. Some principals want their agent to be able to reduce their estate for tax planning or to qualify for certain government benefits such as Medicaid.

What Is a Durable Power of Attorney in Illinois?

A durable power of attorney means the power of attorney remains effective even if you become incapacitated. A physician would examine you and state in writing that you are unable to manage your financial affairs.

When Is the Power of Attorney Effective?

A durable power of attorney generally is effective immediately, but Illinois allows a principal to specify a date or event when the POA becomes effective, such as an incapacity. This is called a “springing” power of attorney.

When Does the Power of Attorney End?

You may revoke your power of attorney at any time if you are competent. There are other occasions when your power of attorney ends, such as:

• The principal dies
• The agent dies, and there is no successor agent
• The agent is incapacitated, and there is no successor agent
• The agent is unwilling or unavailable to serve, and there is no successor agent
• A termination date or event in the power of attorney occurs

Additionally, if your spouse is your agent and you divorce or your marriage is annulled or dissolved, your ex-spouse’s agent authority is revoked unless you state otherwise in your power of attorney.

Does Illinois Have a Statutory Power of Attorney?

Yes. Under Illinois Chapter 755 §45/3-3, there is a Statutory Short Form Power of Attorney for Property. However, it is tricky because, unlike most power of attorney forms where you affirmatively choose the powers, in Illinois, you must strike out provisions that you don’t want. You have two alternatives: Create your own power of attorney or hire an estate planning attorney.

Can I Make My Own Power of Attorney in Illinois?

Yes. You are not required to use Illinois’ statutory power of attorney form or hire an attorney. To make a power of attorney, you should know who to name as your agent and what powers you want to grant. Then, you can use an online power of attorney form to create your Illinois power of attorney customized to your needs. However, you may want to consult an estate planning attorney for legal advice if you have questions about your power of attorney.

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How Do I Make My Power of Attorney Valid in Illinois?

The principal must be 18 or older and mentally competent. Under §45/3-3.6, the principal must sign in front of a witness. Certain people cannot serve as your witness, such as:

• An attending physician or mental health services provider
• An owner-operator or relative of an owner-operator of a healthcare facility
• A parent, sibling, or descendant, or the spouse of a parent, sibling, or descendant of either the principal or any agent or successor agent, regardless of whether the relationship is by blood, marriage, or adoption
• An agent or successor agent

A notary public must also attest to your signature.

Do I Have to Notarize My Power of Attorney in Illinois?

Yes. Under Illinois law, you must have a notary public attest to your signature.

What Should I Do After Signing My Power of Attorney?

After your power of attorney is signed, witnessed, and notarized. Give copies to your agent and successor agents and any necessary parties, such as a bank or financial institution. Third parties may accept the POA without further inquiry. However, they may require the agent to furnish an Agent’s Certification and Acceptance of Authority Form.

Does a Power of Attorney Agent Get Paid in Illinois?

In Illinois, an agent may receive reimbursement for reasonable expenses incurred while serving as an agent. However, if you want your agent to receive reasonable compensation, you should state that wish in your power of attorney document.

Is My Illinois Power of Attorney Valid in Another State?

Yes. Other states will recognize a valid power of attorney created according to Illinois’s legal requirements.

Can I Revoke My Illinois Power of Attorney?

Yes. As long as you are mentally competent, you can revoke your power of attorney by making a “Revocation of Power of Attorney.” You should reference the date of the original power of attorney, the agent’s name, and a statement that you wish to revoke that power of attorney. Sign and date the revocation in front of a notary. Give a copy of the revocation to your agent, successor agents, and any parties with the original POA.

What Estate Planning Documents Should I Have in Illinois?

When you are incapacitated and can’t manage your finances, a power of attorney is critical. There are other estate planning documents to add to it:

A healthcare directive or living will allows you to name someone to access your medical records, talk to health care providers, and make healthcare decisions on your behalf. You can also detail what life-prolonging measures you want when you have an end-stage illness or terminal condition.

In a last will and testament, you name someone to handle your estate, called a personal representative, name beneficiaries to inherit your property and assets, and name guardians for your minor children and pets. A will speeds up the time spent in probate, so your loved ones don’t have to spend a lot of time and money on the process.

Fortunately, making a valid power of attorney and creating other Illinois estate planning documents is easy with online estate planning forms.