2005 Illinois Code - 755 ILCS 45/ Illinois Power of Attorney Act. Article II - Durable Powers Of Attorney
(755 ILCS 45/Art. II heading)
ARTICLE II
‑ DURABLE POWERS OF ATTORNEY.
(755 ILCS 45/2‑1) (from Ch. 110 1/2, par. 802‑1)
Sec. 2‑1.
Purpose.
The General Assembly recognizes that each
individual has the right to appoint an agent to deal with property or make
personal and health care decisions for the individual but that this right
cannot be fully effective unless the principal may empower the agent to act
throughout the principal's lifetime, including during periods of
disability, and be sure that third parties will honor the agent's authority
at all times.
The General Assembly finds that in the light of modern financial needs
and advances in medical science, the statutory recognition of this right of
delegation in Illinois needs to be restated to, among other things, expand
its application and the permissible scope of the agent's authority, clarify
the power of the individual to authorize an agent to make financial and
care decisions for the individual and better protect health care personnel
and other third parties who rely in good faith on the agent so that
reliance will be assured. Nothing in this Act shall be deemed to
authorize or encourage euthanasia, suicide or any action or course of
action that violates the criminal law of this State or the United States.
Similarly, nothing in this Act shall be deemed to authorize or encourage
any violation of a civil right expressed in the Constitution, statutes,
case law and administrative rulings of this State (including, without
limitation, the right of conscience respected and protected by the Health
Care Right of Conscience Act, as now or hereafter amended) or the
United States or any action or course of action that violates the public policy
expressed in the Constitution, statutes, case law and administrative rulings of
this State or the United States.
(Source: P.A. 90‑655, eff. 7‑30‑98.)
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(755 ILCS 45/2‑2) (from Ch. 110 1/2, par. 802‑2)
Sec. 2‑2.
Short Title.
This Article shall be known and may be cited as
the "Durable Power of Attorney Law".
(Source: P.A. 85‑701.)
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(755 ILCS 45/2‑3) (from Ch. 110 1/2, par. 802‑3)
Sec. 2‑3.
Definitions.
As used in this Act:
(a) "Agency" means the written power of attorney or other instrument of
agency governing the relationship between the principal and agent or the
relationship, itself, as appropriate to the context, and includes agencies
dealing with personal or health care as well as property. An agency is
subject to this Act to the extent it may be controlled by the principal,
excluding agencies and powers for the benefit of the agent.
(b) "Agent" means the attorney‑in‑fact or other person designated to act
for the principal in the agency.
(c) "Disabled person" has the same meaning as in the "Probate Act of
1975", as now or hereafter amended. To be under a "disability" or
"disabled" means to be a disabled person.
(d) "Person" means an individual, corporation, trust, partnership or
other entity, as appropriate to the agency.
(e) "Principal" means an individual (including, without limitation, an
individual acting as trustee, representative or other fiduciary) who signs
a power of attorney or other instrument of agency granting powers to an agent.
(Source: P.A. 85‑701.)
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(755 ILCS 45/2‑4) (from Ch. 110 1/2, par. 802‑4)
Sec. 2‑4.
Applicability.
(a) The principal may specify in the agency
the event or time when the agency will begin and terminate, the mode of
revocation or amendment and the rights, powers, duties, limitations,
immunities and other terms applicable to the agent and to all persons
dealing with the agent, and the provisions of the agency will control
notwithstanding this Act, except that every health care agency must
comply with Section 4‑5 of this Act.
(b) From and after the effective date of this Act: (1) this Act governs
every agency, whenever and wherever executed, and all acts of the agent to
the extent the provisions of this Act are not inconsistent with the agency;
and (2) this Act applies to all agencies exercised in Illinois and to all
other agencies if the principal is a resident of Illinois at the time the
agency is signed or at the time of exercise or if the agency indicates that
Illinois law is to apply. Providing forms of statutory property and
health care powers in Articles III and IV does not limit the applicability
of this Act, it being intended that every agency, including, without
limitation, the statutory property and health care power agencies, shall
have the benefit of and be governed by Article II, by Sections 4‑1 through
4‑9 and Section 4‑11 of Article IV, and by all other general provisions of
this Act, except to the extent the terms of the agency are inconsistent with this Act.
(Source: P.A. 86‑736.)
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(755 ILCS 45/2‑5) (from Ch. 110 1/2, par. 802‑5)
Sec. 2‑5.
Duration of agency ‑ amendment and revocation.
Unless the
agency states an earlier termination date, the agency continues until the
death of the principal, notwithstanding any lapse of time, the principal's
disability or incapacity or appointment of a guardian for the principal
after the agency is signed. Every agency may be amended or revoked by the
principal at any time and in any manner communicated to the agent or to any
other person related to the subject matter of the agency, except that
revocation and amendment of health care agencies are governed by Section 4‑6
of this Act except to the extent the terms of the agencies are inconsistent
with that Section.
(Source: P.A. 86‑736.)
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(755 ILCS 45/2‑6) (from Ch. 110 1/2, par. 802‑6)
Sec. 2‑6.
Effect of disability‑divorce.
(a) All acts of the agent
within the scope of the agency during any period of disability, incapacity
or incompetency of the principal have the same effect and inure to the
benefit of and bind the principal and his or her successors in interest as
if the principal were competent and not disabled.
(b) If a court enters a judgement of dissolution of marriage or legal
separation between the principal and his or her spouse after the agency is
signed, the spouse shall be deemed to have died at the time of the judgment
for all purposes of the agency.
(Source: P.A. 85‑701.)
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(755 ILCS 45/2‑7) (from Ch. 110 1/2, par. 802‑7)
Sec. 2‑7.
Duty ‑ standard of care ‑ record‑keeping ‑ exoneration.
The agent shall be under
no duty to exercise the powers granted by the agency or to assume control
of or responsibility for any of the principal's property, care or affairs,
regardless of the principal's physical or mental condition. Whenever a
power is exercised, the agent shall use due care to act for the benefit of
the principal in accordance with the terms of the agency and shall be
liable for negligent exercise. An agent who acts with due care for the
benefit of the principal shall not be liable or limited merely because the
agent also benefits from the act, has individual or conflicting interests
in relation to the property, care or affairs of the principal or acts in a
different manner with respect to the agency and the agent's individual
interests. The agent shall keep a record of all receipts, disbursements,
and significant actions taken under the agency.
The agent shall not be
affected by any amendment or termination
of the agency until the agent has actual knowledge thereof. The agent
shall not be liable for any loss due to error of judgment nor for the act
or default of any other person.
(Source: P.A. 86‑736.)
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(755 ILCS 45/2‑7.5)
Sec. 2‑7.5. Incapacitated principal.
(a) This Section shall apply only to an agent acting for
a principal who is incapacitated. A principal shall be
considered incapacitated if that individual is under a
legal disability as defined in Section 11a‑2 of the Probate
Act of 1975. A principal shall also be considered
incapacitated if:
(i) a physician licensed to practice medicine in all its
branches has examined the principal and has determined that
the principal lacks decision making capacity; and (ii) that
physician
has made a written record
of this determination and has signed the written record
within 90 days after the examination; and (iii) the written
record has been delivered to the agent. The agent may rely
conclusively on that written record.
(b) An agent shall provide a record of all receipts,
disbursements, and significant actions taken under the
authority of the agency when requested to do so: (i) by a
representative of a provider agency, as defined in Section
2 of the Elder Abuse and Neglect Act, acting in the course
of an assessment of a complaint of elder abuse or neglect
under that Act; (ii) by a representative of the Office
of the State Long Term Care Ombudsman acting in the course
of an investigation of a complaint of financial
exploitation of a nursing home resident under Section 4.04
of the Illinois Act on the Aging; or (iii) by a representative of the Office of Inspector General for the Department of Human Services acting in the course of an assessment of a complaint of financial exploitation of an adult with disabilities pursuant to Section 35 of the Abuse of Adults with Disabilities Intervention Act.
(c) If the agent fails to provide his or her record of all receipts, disbursements, and significant actions within 21 days after a request under paragraph (b), the elder abuse provider agency or the State Long Term Care Ombudsman may petition the court for an order requiring the agent to produce his or her record of receipts, disbursements, and significant actions. If the court finds that the agent's failure to provide his or her record in a timely manner to the elder abuse provider agency or the State Long Term Care Ombudsman was without good cause, the court may assess reasonable costs and attorney's fees against the agent, and order such other relief as is appropriate.
(Source: P.A. 94‑500, eff. 8‑8‑05; 94‑850, eff. 6‑13‑06.)
(755 ILCS 45/2‑8) (from Ch. 110 1/2, par. 802‑8)
Sec. 2‑8.
Reliance on
document purporting to establish an
agency. Any person who acts in good faith
reliance on a copy of
a document purporting to establish an agency will be fully protected and
released to
the same extent as though the reliant had dealt directly with the
named
principal
as a fully‑competent person. The
named
agent shall furnish an affidavit to the
reliant on demand stating that the instrument relied on is a true copy of
the agency and that, to the best of the
named
agent's knowledge, the named principal is
alive and the relevant powers of the
named
agent have not been altered or
terminated; but good faith reliance on
a document purporting to establish an agency will protect the reliant
without the affidavit. Any person dealing with an agent
named in a copy of a document purporting to establish an agency
may presume, in
the absence of actual knowledge to the contrary, that the
document purporting to establish the
agency was
validly executed,
that the agency was validly established,
that the named principal was competent at the time
of execution, and that, at the time of reliance, the
named
principal is alive,
the agency
was validly established
and has not terminated or been amended, the relevant powers of the
named
agent were properly and validly granted and have not terminated or
been amended, and the acts of the
named
agent conform to the standards of this Act.
No person relying on
a copy of a document purporting to establish an agency shall be required to see to the application
of any property delivered to or controlled by the
named
agent or to question the
authority of the
named
agent. Each person to whom a direction by the named agent in
accordance with the terms of the
copy of the document purporting to establish an
agency is communicated shall comply with
that direction, and any person who fails to comply arbitrarily or without
reasonable cause shall be subject to civil liability for any damages
resulting from noncompliance.
A health care provider who complies with Section 4‑7 shall not be
deemed to have acted arbitrarily or without reasonable cause.
(Source: P.A. 90‑21, eff. 6‑20‑97.)
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(755 ILCS 45/2‑9) (from Ch. 110 1/2, par. 802‑9)
Sec. 2‑9. Preservation of estate plan and trusts. In exercising powers
granted under the agency, including powers of amendment or revocation and
powers to expend or withdraw property passing by trust, contract or
beneficiary designation at the principal's death (such as, without
limitation, specifically bequeathed property, joint accounts, life
insurance, trusts and retirement plans), the agent shall take the
principal's estate plan into account insofar as it is known to the agent
and shall attempt to preserve the plan, but the agent shall not be liable
to any plan beneficiary under this Section unless the agent acts in bad
faith. An agent may not revoke or amend a trust revocable or amendable by
the principal or require the trustee of any trust for the benefit of the
principal to pay income or principal to the agent without specific
authority and specific reference to the trust in the agency. The agent
shall have access to and the right to copy (but not to hold) the
principal's will, trusts and other personal papers and records to the
extent the agent deems relevant for purposes of this Section. This Section shall not apply to any Totten Trust, Payable on Death Account, or comparable trust account arrangement where the terms of such trust are contained entirely on the financial institution's signature card insofar as an agent acting under a power of attorney executed in accordance with this Act shall be permitted to withdraw income or principal from such account if the power of attorney grants the agent authority to conduct financial institution transactions on the principal's behalf and the agent's authority to access such account is not expressly limited or withheld in the agency.
(Source: P.A. 94‑938, eff. 1‑1‑07.)
(755 ILCS 45/2‑10) (from Ch. 110 1/2, par. 802‑10)
Sec. 2‑10.
Agency‑court relationship.
Upon petition by any interested
person (including the agent), with such notice to interested persons as the
court directs and a finding by the court that the principal
lacks the capacity to control or revoke the agency: (a) if the court finds
that the agent is not acting for the benefit of the principal in accordance
with the terms of the agency or that the agent's action or inaction has
caused or threatens substantial harm to the principal's person or property
in a manner not authorized or intended by the principal, the court may
order a guardian of the principal's person or estate to exercise any powers
of the principal under the agency, including the power to revoke the
agency, or may enter such other orders without appointment of a guardian as
the court deems necessary to provide for the best interests of the
principal; or (b) if the court finds that the agency requires
interpretation, the court may construe the agency and instruct the agent,
but the court may not amend the agency. Absent court order directing a
guardian to exercise powers of the principal under the agency, a guardian
will have no power, duty or liability with respect to any property subject
to the agency or any personal or health care matters covered by the agency.
Proceedings under this Section shall be commenced in the county where the
guardian was appointed or, if no Illinois guardian is acting, then in the
county where the agent resides or, if the agent does not reside in
Illinois, then in any county.
(Source: P.A. 85‑701.)
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(755 ILCS 45/2‑11) (from Ch. 110 1/2, par. 802‑11)
Sec. 2‑11.
Saving clause.
This Act does not in any way
invalidate any agency executed or any act of any agent done, or
affect any claim, right or remedy that accrued, prior to
September 22, 1987.
(Source: P.A. 86‑736.)
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