The Illinois Power of Attorney statute has been amended to provide greater protections to principals. The new law is P.A. 96-1195, effective July 1, 2011. You can read it on the Illinois General Assembly’s website.
As I wrote in the May 2010 issue of the Illinois Bar Journal, the new law provides notice to those assuming the agent role of their duties and responsibilities and adds the duties of good faith, competence, and diligence to agents’ duty of due care. Among many other things, it also expands the categories of people who would be entitled to ask for accountings from agents and provides for awards of attorney’s fees against agents in the event they violate the statute.
Whether you’re a lawyer or not, you need to know what a power of attorney is. The odds are, in this time of longer lives and Alzheimer’s disease or other forms of dementia, that either you’ll be called to sign one as part of your estate plan or to act under one as an agent, or one of your family members will be in that situation.
When you sign a power of attorney, you’re authorizing another person to act in your place and on your behalf. That person is the agent under the power of attorney, sometimes also called your “attorney-in-fact.”
Historically, powers of attorney became invalid after the principal, that is, the person signing the power of attorney, became incapacitated. So someone who had signed a power of attorney enabling, say, an adult child to handle his financial affairs and then became unable to do so because of dementia (for example) would then have to become the subject of a court proceeding so that a guardian could be appointed to handle his affairs.
Court proceedings cost money and are not generally pleasant, including for someone who’s no longer capable of handling his own business but is still quite capable of understanding that other people are taking him to court to have him declared incompetent. Durable powers of attorney solve this problem by remaining valid after the principal’s disability, so no court proceeding is required. They aren’t a panacea, though. With no supervision by a court or anyone else, they’re subject to abuse by those acting under them. So choose your agent wisely, and have a full and frank discussion with that person about what you want and expect from him or her before you make your arrangements. Think about talking to other family members, too, who may get their noses out of joint if and when they learn of your choice.
If you’re asked to act under a power of attorney, know that it’s a huge responsibility and a lot of work. Even if you’re totally honest, expect that you’ll be subject to suspicion by relatives, family friends, acquaintances, neighbors, and service providers. You can mitigate this to some extent by being transparent, at least with family members. Sure, the law may not require you to open your relative’s books to the rest of the family. Just because something’s not required, though, doesn’t mean it’s not a good idea. Sunshine really is the best disinfectant.
I’ve written a number of articles on powers of attorney and on how lawyers can represent impaired clients and their agents under powers of attorney.
“The Perilous World of POA Agents,” 96 Ill Bar J 398 (August 2008)
“Stepping up the fight against elder abuse,” 96 Ill Bar J 339 (July 2008)
“Cashing in on home sweet home,” 96 Ill Bar J 179 (April 2008)
“Of Principals and POAs: Protecting the Elderly from Themselves,” 95 Ill Bar J 580 (November 2007)
“Help Your Client Choose the Right Advance Directive,” 93 Ill Bar J 284 (June 2005)
“The Challenge of Representing Mentally Impaired Clients,” 92 Ill Bar J 518 (October 2004)
Several contemporary writers have dealt with dementia and its effects on the victim and family members by combining sensitivity with humor:
Jonathan Franzen, “The Corrections.”
Marina Lewycka, “A Short History of Tractors in Ukrainian.”
Mark Haddon, “A Spot of Bother.”
Professor Gerry W. Beyer of the Texas Tech University School of Law blogs about powers of attorney and other probate law issues at the Wills, Trusts, and Estates Prof Blog. I’ve interviewed Professor Beyer and quoted him a number of times in my articles. His blog provides information, insight and ideas about all kinds of different probate angles. Do check it out!