Estate Planning | Living Wills | Guardianship | Power of Attorney

Give Trusted Person "Power of Attorney" Privileges

A "living trust" is usually the best way to provide for someone to manage a person's property and payment of bills during a disability. The "power of attorney" is another simple document that can serve the same purpose.

The "power of attorney" appoints an agent - not necessarily an attorney - who has power to act on behalf of another person for whatever purposes are specified in the document.

Some "powers of attorney" are limited in scope. Examples of limited "powers of attorney" are the forms that can be signed to authorize someone to write checks on your bank account or to authorize access to your safe deposit box. A general "power of attorney," on the other hand, gives the agent broad power to manage property and pay bills. It may even empower the agent to make gifts on your behalf, to transfer your property to a living trust or to consent to medical or surgical procedures on your behalf, if these powers are specified in the document.

If you signed a general "power of attorney," it may be advisable to sign one or more special powers, because most financial institutions prefer to work with their own printed forms. A "power of attorney" that deals with real estate, however, must be acknowledged before a notary public.

In a situation where there is a prolonged illness, a general "power of attorney" doesn't work as smoothly as a living trust. For this reason, many lawyers recommend living trusts for clients who are ill or elderly, and use the "power of attorney" for clients who are young and healthy as "insurance" against an unexpected contingency. The "power of attorney" may also be used to supplement a living trust.

Illinois has adopted a Durable Power of Attorney law. This act allows for the appointment of an agent and successor agent who can act for you. The power can be implemented should you become incapacitated.

The act further provides two types of statutory powers: property and health care. The property power must be witnessed by a notary public and the health care power by one witness.

A property power allows you to appoint an agent who can act in your behalf in whatever matters are delegated. It can be as broad or narrow as you want. Matters such as successor agents, guardianship and compensation also can be specified.

A "health care power" allows for the appointment of an agent to make health care decisions on your behalf. Illinois law allows adults the right to accept or refuse medical treatment. A "health care power" provides for the delegation of this right to an agent and specifies medical treatment based on your preference. Your health care "power of attorney" should be consistent with any preferences you may express on a living will.

A word of caution: the "power of attorney" allows the agent to do anything that you could do. You should not provide anyone with a "power of attorney" privilege unless you have the utmost trust and confidence in that person. Death automatically cancels a "power of attorney," so the device is no substitute for a will.

Note: This information was prepared as a public service by the Illinois State Bar Association. Every effort has been made to provide accurate information at the time of publication. For the most current information, please consult your lawyer. If you need a lawyer and do not have one, visit our lawyer referral page

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