(755 ILCS 45/2-4)
(from Ch. 110 1/2, par. 802-4)
(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.
(c) Notwithstanding the provisions of subsections (a) and (b), this Act shall not apply to an agreement or contract described in any of items (1) through (8) of this subsection under which a financial institution, defined as a (i) bank, trust company, savings bank, savings and loan, or credit union holding a federal charter or a charter from any of the states that is subject to regulation by the Illinois Secretary of Financial and Professional Regulation or (ii) broker-dealer registered with the United States Securities and Exchange Commission, is named as an agent for any person, provided that the agreement or contract does not include in its terms a durable power of attorney that survives the incapacity of the principal:
(1) a proxy or other delegation to exercise voting
rights or management rights with respect to a corporation, partnership (general or limited), limited liability company, condominium, commercial entity, or association;
(2) an agreement or contract given to a financial
institution to facilitate a specific transfer or disposition of one or more identified stocks, bonds, or assets, whether real or personal, tangible or intangible;
(3) an agreement or directive authorizing a financial
institution to prepare, execute, deliver, submit, or file a document or instrument with a government or governmental subdivision, agency, or instrumentality, or other third party;
(4) an agreement or contract authorizing a financial
institution or an officer of a financial institution to take a specific action or actions in relation to an account in which the financial institution (i) holds cash, securities, commodities, or other financial assets on behalf of the principal or (ii) acts as an investment manager with a third party serving as the custodian of such cash, securities, commodities, or other financial assets on behalf of the principal;
(5) an agreement or contract authorizing a financial
institution to take specific actions with respect to collateral in connection with a loan or other secured credit transaction other than a mortgage;
(6) an agreement or contract given to a financial
institution by an individual who is, or is seeking to become, a director, officer, stockholder, employee, partner (general or limited), member, unit owner, equity owner, trustee, manager, or agent of a corporation, a partnership (general or limited), a limited liability company, a condominium, a legal or commercial entity, or an association, in that individual's capacity as such, including an agreement or directive contained in a subscription agreement;
(7) an authorization contained in a certificate of
incorporation, bylaws, general or limited partnership agreement, limited liability company agreement, declaration of trust, declaration of condominium, condominium offering plan, or other agreement or instrument governing the internal affairs of an entity or association authorizing a director, officer, shareholder, employee, partner (general or limited), member, unit owner, equity owner, trustee, manager, or other person to take lawful actions relating to such entity or association; or
(8) an agreement authorizing the acceptance of the
service of process on behalf of the person executing the agreement.
(d) An agreement or contract described in subsection (c) is not a "nonstatutory property power" subject to subsection (b) of Section 3-3. This subsection (d) is declarative of existing law and is applicable to all agreements or contracts whenever executed.
(Source: P.A. 97-868, eff. 7-30-12.)
(755 ILCS 45/2-7)
(from Ch. 110 1/2, par. 802-7)
Duty - standard of care - record-keeping - exoneration.
(a) 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 act in good faith for the benefit of
the principal using due care, competence, and diligence 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
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.
(b) An agent that has accepted appointment must act in accordance with the principal's expectations to the extent actually known to the agent and otherwise in the principal's best interests.
(c) An agent shall keep a record of all receipts, disbursements, and significant actions taken under the authority of the agency and shall provide a copy of this record when requested to do so by:
(1) the principal, a guardian, another fiduciary
acting on behalf of the principal, and, after the death of the principal, the personal representative or successors in interest of the principal's estate;
(2) a representative of a provider agency, as defined
in Section 2 of the Adult Protective Services Act, acting in the course of an assessment of a complaint of elder abuse or neglect under that Act;
(3) 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;
(4) 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;
(5) a court under Section 2-10 of this Act; or
(6) a representative of the Office of State Guardian
or public guardian for the county in which the principal resides acting in the course of investigating whether to file a petition for guardianship of the principal under Section 11a-4 or 11a-8 of the Probate Act of 1975.
(d) If the agent fails to provide his or her record of all receipts, disbursements, and significant actions within 21 days after a request under subsection (c), the adult abuse provider agency, the State Guardian, the public guardian, or a representative of the Office of 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 adult abuse provider agency, the State Guardian, the public guardian, or a representative of the Office of 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.
(e) An agent is not required to disclose receipts, disbursements, or other significant actions conducted on behalf of the principal except as otherwise provided in the power of attorney or as required under subsection (c).
(f) An agent that violates this Act is liable to the principal or the principal's successors in interest for the amount required (i) to restore the value of the principal's property to what it would have been had the violation not occurred, and (ii) to reimburse the principal or the principal's successors in interest for the attorney's fees and costs paid on the agent's behalf. This subsection does not limit any other applicable legal or equitable remedies.
(Source: P.A. 100-952, eff. 1-1-19
(755 ILCS 45/2-10)
(from Ch. 110 1/2, par. 802-10)
(a) 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 either the capacity to control or the capacity to revoke the agency, the court may construe a power of attorney, review the agent's conduct, and grant appropriate relief including compensatory damages.
(b) 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
(c) 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.
(d) If the court finds that the agent has not acted for the benefit of the principal in accordance with the terms of the agency and the Illinois Power of Attorney Act, or that the agent's action caused or threatened substantial harm to the principal's person or property in a manner not authorized or intended by the principal, then the agent shall not be authorized to pay or be reimbursed from the estate of the principal the attorneys' fees and costs of the agent in defending a proceeding brought pursuant to this Section.
(e) Upon a finding that the agent's action has caused substantial harm to the principal's person or property, the court may assess against the agent reasonable costs and attorney's fees to a prevailing party who is a provider agency as defined in Section 2 of the Adult Protective Services Act, a representative of the Office of the State Long Term Care Ombudsman, the State Guardian, a public guardian, or a governmental agency having regulatory authority to protect the welfare of the principal.
(f) As used in this Section, the term "interested person" includes (1) the principal or the agent; (2) a guardian of the person, guardian of the estate, or other fiduciary charged with management of the principal's property; (3) the principal's spouse, parent, or descendant; (4) a person who would be a presumptive heir-at-law of the principal; (5) a person named as a beneficiary to receive any property, benefit, or contractual right upon the principal's death, or as a beneficiary of a trust created by or for the principal; (6) a provider agency as defined in Section 2 of the Adult Protective Services Act, a representative of the Office of the State Long Term Care Ombudsman, the State Guardian, a public guardian, or a governmental agency having regulatory authority to protect the welfare of the principal; and (7) the principal's caregiver or another person who demonstrates sufficient interest in the principal's welfare.
(g) 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 or principal resides or where the principal owns real property.
(i) This Section shall not be construed to limit any other remedies available.
(Source: P.A. 98-49, eff. 7-1-13; 98-562, eff. 8-27-13; 98-756, eff. 7-16-14.)
(755 ILCS 45/2-10.3)
(a) A principal may designate one or more successor agents to act if an initial or predecessor agent resigns, dies, becomes incapacitated, is not qualified to serve, or declines to serve. A principal may grant authority to another person, designated by name, by office, or by function, including an initial or successor agent, to designate one or more successor agents. Unless a power of attorney otherwise provides, a successor agent has the same authority as that granted to an initial agent.
(b) An agent is not liable for the actions of another agent, including a predecessor agent, unless the agent participates in or conceals a breach of fiduciary duty committed by the other agent. An agent who has knowledge of a breach or imminent breach of fiduciary duty by another agent must notify the principal and, if the principal is incapacitated, take whatever actions may be reasonably appropriate in the circumstances to safeguard the principal's best interest.
(c) Any person who acts in good faith reliance on the representation of a successor agent regarding the unavailability of a predecessor agent will be fully protected and released to the same extent as though the reliant had dealt directly with the predecessor agent. Upon request, the successor agent shall furnish an affidavit or Successor Agent's Certification and Acceptance of Authority to the reliant, but good faith reliance on a document purporting to establish an agency will protect the reliant without the affidavit or Successor Agent's Certification and Acceptance of Authority. A Successor Agent's Certification and Acceptance of Authority shall be in substantially the following form:
CERTIFICATION AND ACCEPTANCE OF AUTHORITY
I certify that the attached is a true copy of a power of attorney naming the undersigned as agent or successor agent for .......... (insert name of principal).
I certify that to the best of my knowledge the principal had the capacity to execute the power of attorney, is alive, and has not revoked the power of attorney; that my powers as agent have not been altered or terminated; and that the power of attorney remains in full force and effect.
I certify that to the best of my knowledge .......... (insert name of unavailable agent) is unavailable due to ................. (specify death, resignation, absence, illness, or other temporary incapacity).
I accept appointment as agent under this power of attorney.
This certification and acceptance is made under penalty of perjury.*
(Print Agent's Name)
*(NOTE: Perjury is defined in Section 32-2 of the Criminal Code of 2012, and is a Class 3 felony.)
(Source: P.A. 96-1195, eff. 7-1-11; 97-1150, eff. 1-25-13.)