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A Power of Attorney for Property is a document that empowers another individual to carry on your financial affairs in the event you become disabled or incapacitated. Although the document is titled “Power of Attorney for Property,” it is not limited to management of your real estate during your incapacity. Rather, it can be drafted to encompass a very wide array of your personal legal and financial powers. For example, you can delegate your right to sign a contract, your right to open or close one of your bank accounts, or to sign your tax return, to your agent to carry out for you when you are unable to do so yourself during your incapacity.
This could be helpful if, for example, you became incapacitated while you were in the middle of rolling over an IRA, about to sign your tax return, or in the process of purchasing a particular financial investment (e.g., buying a certificate of deposit or opening an investment account). If these powers are included in your document, your agent would have the legal authority to complete these transactions for you.
In this type of document, the person signing it and granting the authority is called the “principal,” and the person to whom such authority is granted is called the “agent” (sometimes referred to as an “attorney-in-fact,” which is very different from an “attorney-at-law”).
In Illinois, any resident who is over the age of majority and who is legally competent can establish an Illinois Statutory Power of Attorney for Property.
In general, an agent can be anyone who is legally competent and over the age of majority, even if they are not a resident of Illinois. Most people select a close family member such as a spouse, sibling or adult child. However, any person—such as a friend or a professional—whom you trust to manage your financial affairs and assets for you when you cannot do so would be ideal. Because of the increasing number of older adults who have no family members to name as agent in a Power of Attorney for Property, there are a growing number of professionals—both individuals and companies—who can be retained to serve as your financial agent. Our office has worked with many of them to the benefit of our clients.
In Illinois, you can only have one agent serve at a time. However, you can name as many other agents to serve, one at a time in the order listed, if your primary choice for your financial agent is unable or unwilling to act.
No, Illinois law does not require residents to create or execute a Power of Attorney for Property. However, if you do choose to sign one, you do not lose any of your rights to manage your own financial affairs while you have the capacity to do so. Further, you can amend or revoke your Power of Attorney for Property at any time, as long as you have the mental capacity to do so. You can also place an expiration date on it if you anticipate that your incapacity may last only a short time.
Without a Power of Attorney for Property, if you become incapacitated it may be necessary for someone to petition a court to be appointed as your guardian in order to make or carry out your financial decisions and manage your assets for you when you are incapacitated. This guardianship process is time consuming and expensive, often costing thousands of dollars. Worse, because you are incapacitated, you may not necessarily have a say in the court’s selection of the person whom the Court appoints as your guardian. If there is any family disagreement about who should serve as your guardian, this process can be emotionally and financially draining for your family and loved ones.
Schening & Dopke Law, LLC is located in South Elgin, IL and serves clients throughout Kane, DuPage, DeKalb and Cook Counties and the surrounding areas.
