If you want someone to be able to deposit your checks at your bank, file your taxes, or even sell or mortgage your home, you can create a handy document called a power of attorney. A POA is a simple document that grants specific powers to someone you trust—called an "agent" or "attorney-in-fact"—to handle certain matters for you.
You can make several different types of POAs in Illinois. In particular, many estate plans include two POAs:
In most estate plans, both of these POAs are what are known as "durable" POAs, which means that they retain their effectiveness even after you're incapacitated. It's a good idea for most people to create these two documents, as they help plan for the unexpected.
To learn about other types of POAs, including non-durable (limited) and springing POAs, see What Is a Power of Attorney. Below, learn how to create a durable financial POA that is valid in Illinois.
For your POA to be valid in Illinois, it must meet certain requirements.
The person making a power of attorney must be of sound mind, but the exact contours of this mental capacity requirement are open to interpretation by Illinois courts. If you're helping someone make a POA and are unsure whether the person has the necessary mental capacity, you should consult an attorney.
To make a POA in Illinois, you must sign the POA in the presence a notary public and at least one witness. The notary public cannot act as the witness. Additionally, the following people cannot be your witness:
Ill. Comp. Stat. 45/3-3.6. These rules help ensure that your witnesses are disinterested—that is, they're unlikely to have ulterior motives when witnessing your signature.
In addition, Illinois requires that certain language (including warnings and notices) be included in the POA. If you make your POA using a statutory form, reputable software program, or local attorney (see "Steps for Making a Financial Power of Attorney," below), the resulting POA should automatically incorporate the required language.
Illinois offers a statutory form (a form drafted by the state legislature) with blanks that you can fill out to create your POA. For a more user-friendly experience, you can try a software program like WillMaker, which guides you through a series of questions to arrive at a POA that meets your specific aims and is valid in your state. You can also hire an Illinois lawyer to create a POA for you. Many lawyers will include durable POAs as part of a more comprehensive estate plan alongside a will or living trust.
The process of making your POA in Illinois includes considering a list of powers to be granted to your agent. For example, you'll see that your agent has the power to conduct:
If you're using a form, you'll likely need to strike out any specific power that you don't want to give your agent; otherwise, all your agent will have the ability to act on your behalf in all of these areas. If your circumstances require further tailoring, there is typically also a section in your POA that allows you to further limit or extend the powers you grant to your agent.
In Illinois, your power of attorney is durable by default (meaning it remains effective after your incapacitation) unless you explicitly state otherwise in the document.
As mentioned, you can't simply sign the document and call it a day. In Illinois, you must notarize the POA and have it witnessed by at least one person who meets the requirements listed above.
Once you have completed the POA, store the original in a safe place that your loved ones can easily access, and let them know where to find it. (It won't do much good locked away in a safe that no one can get into.) If you become incapacitated, your agent might need the original POA to act on your behalf.
You should also give a copy of the power of attorney to your agent so that your agent is familiar with the contents of the document.
If you gave your agent the power to conduct real estate transactions, you should also file a copy of your POA in the land records office (called the recorder of deeds in Illinois) in the county where you own real estate. This will allow the recorder of deeds to recognize your agent's authority if your agent ever needs to sell, mortgage, or transfer real estate for you.
You can also give copies of your durable financial POA to banks or other institutions that your agent might need to deal with in the future. This step might eliminate some hassles for your agent if your agent ever needs to use the POA. Banks can sometimes be finicky about accepting POAs; see Can Banks Refuse a Power of Attorney? for more details.
Legally speaking, you can name any competent adult to serve as your agent. But you'll want to take into account certain practical considerations, such as the person's trustworthiness and geographical location. For more on choosing agents, see What Is a Power of Attorney.
Illinois allows you to appoint co-agents who are authorized to act at the same time, but if you, your software, or your attorney uses the statutory form, you'll see that there's space for only one agent. It's usually advisable to stick to just one agent anyway, to minimize potential conflicts. However, naming a "successor" agent—an alternate who will become your agent if your first choice is unavailable for any reason—is always a good idea, as it creates a backup plan.
In Illinois, your POA will state the date that it becomes effective. It's quite common for the POA to become effective immediately, as soon as it's signed, notarized, and witnessed.
It's possible to create a condition that must be satisfied before the POA becomes effective—such as a doctor declaring that you are incapacitated—but there are reasons why this type of "springing" power of attorney is not usually advised.
Any power of attorney automatically ends at your death. A durable POA also ends if:
Additionally, in Illinois, if your spouse is named as your agent in your POA, that designation automatically ends if you get divorced. To be clear, your ex-spouse's authority to act as your agent ends, but your POA is still intact. So if you named a successor agent, that person would become your agent instead.
For more on Illinois estate planning issues, see our section on Illinois Estate Planning.