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Changes to the Illinois Power of Attorney Act

Sweeping changes have been signed into law affecting the Illinois Power of Attorney Act. Governor Quinn signed into law House Bill 6477, which will be effective July 1, 2011. We have read the new law and are preparing to implement the changes next year. You should be aware of these changes, especially if you are now acting as an agent or are named as an agent to be effective in the future. Overview of Current Law Currently, Illinois allows for powers of attorney. A power of attorney (POA) grants someone else (the "agent") the power to make certain decisions on the individual's (the "principal") behalf. The powers granted are those enumerated within the power of attorney document. In general, there are two categories of decisionmaking usually delegated to an agent in a power of attorney. Those categories are health care decisions and property/financial decisions. Although some attorneys combine these two categories into one document, the majority of attorneys use separate documents for each category. Changes to the Law Notice to the Principal A notice to the principal explains the POA in general and its various provisions. Notice to the Agent A notice to the agent details how an agent should act in accordance with the law. Changes to the POAs There are various changes to the POA documents, but they primarily are made to accommodate the use of the notices described above. Better Definitions The new law changes or clarifies definitions of "incurable or irreversible condition", "permanent unconsciousness", and "terminable disease". Witness Restrictions Health care POAs cannot be witnessed by certain individuals, including, among others: parents, siblings, attending physician. Certification and Acceptance of Authority Previously, a third-party (usually a financial institution) who, in good faith, relied on a POA through the agent's affidavit was "fully protected and released". In addition to an affidavit, a third-party may now rely on a form titled "Agent's Certification and Acceptance of Authority". Standard of Care The prior standard of using "due care" in the exercise of the agent's duties is replaced with "good faith for the benefit of the principal using due care, competence, and diligence in accordance with the terms of the agency . . ." Record Keeping Although an agent was always required to keep a record of receipts, disbursements, and significant actions, the new law provides who can request a copy of those records and how to do so. Also, the new law provides an enforcement mechanism and penalties for failure to provide adequate records after a request. Revocation of Prior POA The execution of a new POA does not revoke a previously executed POA unless the new POA expressly revokes the prior POA or the powers contained therein. Protection to Successor Agents The law will provide certain protections to successor agents from actions performed by the primary agent. Co-Agents As before, co-agents are not allowed in the use of the statutory forms. However, if co-agents are named in a non-statutory form, then the law provides when and how they should act. Out-of-State POAs The new law now expressly states when an out-of-state POA is valid in Illinois.

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