Illinois Changes Its Power of Attorney Laws

Estate Planning Practice Group

By Estate Planning Practice Group

The revised Illinois Power of Attorney Act, 755 ILCS 45/2-1 et seq. provides greater protection to principals. These revisions are designed to minimize abuses of the elderly, incapacitated and disabled persons by their agents serving under powers of attorney. House Bill 6477, the new state bill containing the changes, was passed by both houses and signed into law by Governor Quinn on July 26, 2010. The effective date for the changes is July 1, 2011. All powers of attorney which were validly executed prior to this date will continue to remain effective.

A few highlights of the changes to this Act are:

  1. Definitions of these key terms: “incapacitated,” “incurable or irreversible condition,” “permanent unconsciousness,” and “terminal condition,” some of which are borrowed definitions from the Health Care Surrogate Act.
  2. The agent’s duties and standard of care for the principal are expanded, particularly in the area of record keeping, as well as liability for neglect or elder abuse.
  3. The agency-court relationship has been rewritten to allow the review of an agent by the court and additionally adds new remedies to protect the principal.
  4. New paragraphs with respect to successor agents, co-agents, and powers executed in another state or country.
  5. Forms for Certification and Acceptance of Authority of agent, successor agent, and co-agents are available.
  6. New paragraph has been added with respect to persons who may be witnesses to the signature of the principal on a power of attorney. For instance, the witness cannot be a relative of the principal or agent by blood, marriage or adoption, an agent or successor agent, the attending doctor or relative of the doctor, owner or operator or relative of an owner or operator of the health care facility of the principal.
  7. The health care power does not authorize the agent to make any anatomical gifts, and incorporates recent improvements to the Disposition of Remains Act. The principal’s agent is to be treated as the principal in using and disclosing health records as governed by HIPAA.
  8. A specific “Notice to Agent” is required under the new statutory short form power of attorney to be given to the agent detailing the agent’s rights and responsibilities so that agents know what they should do and should not do.

If you are interested in learning more about the specifics about the changes to the Illinois Powers of Attorney Act, or any estate planning need, please give our office a call and we can provide you with further information.

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