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91_SB1567eng SB1567 Engrossed LRB9111460STcs 1 AN ACT to amend the Illinois Power of Attorney Act by 2 adding Section 2-7.5 and by changing Section 3-3. 3 Be it enacted by the People of the State of Illinois, 4 represented in the General Assembly: 5 Section 5. The Illinois Power of Attorney Act is amended 6 by adding Section 2-7.5 and changing Section 3-3 as follows: 7 (755 ILCS 45/2-7.5 new) 8 Sec. 2-7.5. Incapacitated principal. 9 (a) This Section shall apply only to an agent acting for 10 a principal who is incapacitated. A principal shall be 11 considered incapacitated if that individual is under a legal 12 disability as defined in Section 11a-2 of the Probate Act of 13 1975. A principal shall also be considered incapacitated if: 14 (i) a physician licensed to practice medicine in all its 15 branches has examined the principal and has determined that 16 the principal lacks decision making capacity; and (ii) that 17 physician has made a written record of this determination and 18 has signed the written record within 90 days after the 19 examination; and (iii) the written record has been delivered 20 to the agent. The agent may rely conclusively on that written 21 record. 22 (b) An agent shall provide a record of all receipts, 23 disbursements, and significant actions taken under the 24 authority of the agency when requested to do so: (i) by a 25 representative of a provider agency, as defined in Section 2 26 of the Elder Abuse and Neglect Act, acting in the course of 27 an assessment of a complaint of elder abuse or neglect under 28 that Act; or (ii) by a representative of the Office of the 29 State Long Term Care Ombudsman acting in the course of an 30 investigation of a complaint of financial exploitation of a 31 nursing home resident under Section 4.04 of the Illinois Act SB1567 Engrossed -2- LRB9111460STcs 1 on the Aging. 2 (c) If an agent is required to provide records under 3 subsection (b) of this Section and no evidence of wrongdoing 4 is discovered, that agent may bring a civil action for 5 reimbursement of costs incurred. In that action the agent 6 must name as defendant the party that requested the records. 7 The named defendant may be a person who reported a suspicion 8 of wrongdoing to any agency designated to receive such 9 reports, or the named defendant may be the agency itself. The 10 agent may recover reasonable attorney fees and reasonable 11 costs incurred as a result of providing the required records. 12 The circuit court shall determine in its discretion the 13 reasonable costs to which the agent is entitled for 14 reimbursement. 15 (755 ILCS 45/3-3) (from Ch. 110 1/2, par. 803-3) 16 Sec. 3-3. Statutory short form power of attorney for 17 property. The following form may be known as "statutory 18 property power" and may be used to grant an agent powers with 19 respect to property and financial matters. When a power of 20 attorney in substantially the following form is used, 21 including the "notice" paragraph at the beginning in capital 22 letters and the notarized form of acknowledgment at the end, 23 it shall have the meaning and effect prescribed in this Act. 24 The validity of a power of attorney as meeting the 25 requirements of a statutory property power shall not be 26 affected by the fact that one or more of the categories of 27 optional powers listed in the form are struck out or the form 28 includes specific limitations on or additions to the agent's 29 powers, as permitted by the form. Nothing in this Article 30 shall invalidate or bar use by the principal of any other or 31 different form of power of attorney for property. 32 Nonstatutory property powers must be executed by the 33 principal and designate the agent and the agent's powers, but SB1567 Engrossed -3- LRB9111460STcs 1 they need not be acknowledged or conform in any other respect 2 to the statutory property power. 3 "ILLINOIS STATUTORY SHORT FORM POWER OF ATTORNEY FOR PROPERTY 4 (NOTICE: THE PURPOSE OF THIS POWER OF ATTORNEY IS TO 5 GIVE THE PERSON YOU DESIGNATE (YOUR "AGENT") BROAD POWERS TO 6 HANDLE YOUR PROPERTY, WHICH MAY INCLUDE POWERS TO PLEDGE, 7 SELL OR OTHERWISE DISPOSE OF ANY REAL OR PERSONAL PROPERTY 8 WITHOUT ADVANCE NOTICE TO YOU OR APPROVAL BY YOU. THIS FORM 9 DOES NOT IMPOSE A DUTY ON YOUR AGENT TO EXERCISE GRANTED 10 POWERS; BUT WHEN POWERS ARE EXERCISED, YOUR AGENT WILL HAVE 11 TO USE DUE CARE TO ACT FOR YOUR BENEFIT AND IN ACCORDANCE 12 WITH THIS FORM AND KEEP A RECORD OF RECEIPTS, DISBURSEMENTS 13 AND SIGNIFICANT ACTIONS TAKEN AS AGENT. A COURT CAN TAKE 14 AWAY THE POWERS OF YOUR AGENT IF IT FINDS THE AGENT IS NOT 15 ACTING PROPERLY. YOU MAY NAME SUCCESSOR AGENTS UNDER THIS 16 FORM BUT NOT CO-AGENTS. UNLESS YOU EXPRESSLY LIMIT THE 17 DURATION OF THIS POWER IN THE MANNER PROVIDED BELOW, UNTIL 18 YOU REVOKE THIS POWER OR A COURT ACTING ON YOUR BEHALF 19 TERMINATES IT, YOUR AGENT MAY EXERCISE THE POWERS GIVEN HERE 20 THROUGHOUT YOUR LIFETIME, EVEN AFTER YOU BECOME DISABLED. 21 THE POWERS YOU GIVE YOUR AGENT ARE EXPLAINED MORE FULLY IN 22 SECTION 3-4 OF THE ILLINOIS "STATUTORY SHORT FORM POWER OF 23 ATTORNEY FOR PROPERTY LAW" OF WHICH THIS FORM IS A PART (SEE 24 THE BACK OF THIS FORM). THAT LAW EXPRESSLY PERMITS THE USE 25 OF ANY DIFFERENT FORM OF POWER OF ATTORNEY YOU MAY DESIRE. 26 IF THERE IS ANYTHING ABOUT THIS FORM THAT YOU DO NOT 27 UNDERSTAND, YOU SHOULD ASK A LAWYER TO EXPLAIN IT TO YOU.) 28 POWER OF ATTORNEY made this .... day of ....... (month) 29 ...... (year) 30 1. I, ..............., (insert name and address of 31 principal) hereby appoint: 32 ............................................................. 33 (insert name and address of agent) 34 as my attorney-in-fact (my "agent") to act for me and in my SB1567 Engrossed -4- LRB9111460STcs 1 name (in any way I could act in person) with respect to the 2 following powers, as defined in Section 3-4 of the "Statutory 3 Short Form Power of Attorney for Property Law" (including all 4 amendments), but subject to any limitations on or additions 5 to the specified powers inserted in paragraph 2 or 3 below: 6 (YOU MUST STRIKE OUT ANY ONE OR MORE OF THE FOLLOWING 7 CATEGORIES OF POWERS YOU DO NOT WANT YOUR AGENT TO HAVE. 8 FAILURE TO STRIKE THE TITLE OF ANY CATEGORY WILL CAUSE THE 9 POWERS DESCRIBED IN THAT CATEGORY TO BE GRANTED TO THE AGENT. 10 TO STRIKE OUT A CATEGORY YOU MUST DRAW A LINE THROUGH THE 11 TITLE OF THAT CATEGORY.) 12 (a) Real estate transactions. 13 (b) Financial institution transactions. 14 (c) Stock and bond transactions. 15 (d) Tangible personal property transactions. 16 (e) Safe deposit box transactions. 17 (f) Insurance and annuity transactions. 18 (g) Retirement plan transactions. 19 (h) Social Security, employment and military service 20 benefits. 21 (i) Tax matters. 22 (j) Claims and litigation. 23 (k) Commodity and option transactions. 24 (l) Business operations. 25 (m) Borrowing transactions. 26 (n) Estate transactions. 27 (o) All other property powers and transactions. 28 (LIMITATIONS ON AND ADDITIONS TO THE AGENT'S POWERS MAY BE 29 INCLUDED IN THIS POWER OF ATTORNEY IF THEY ARE SPECIFICALLY 30 DESCRIBED BELOW.) 31 2. The powers granted above shall not include the 32 following powers or shall be modified or limited in the 33 following particulars (here you may include any specific 34 limitations you deem appropriate, such as a prohibition or SB1567 Engrossed -5- LRB9111460STcs 1 conditions on the sale of particular stock or real estate or 2 special rules on borrowing by the agent): 3 ............................................................. 4 ............................................................. 5 ............................................................. 6 ............................................................. 7 ............................................................. 8 3. In addition to the powers granted above, I grant my 9 agent the following powers (here you may add any other 10 delegable powers including, without limitation, power to make 11 gifts, exercise powers of appointment, name or change 12 beneficiaries or joint tenants or revoke or amend any trust 13 specifically referred to below): 14 ............................................................. 15 ............................................................. 16 ............................................................. 17 ............................................................. 18 ............................................................. 19 (YOUR AGENT WILL HAVE AUTHORITY TO EMPLOY OTHER PERSONS AS 20 NECESSARY TO ENABLE THE AGENT TO PROPERLY EXERCISE THE POWERS 21 GRANTED IN THIS FORM, BUT YOUR AGENT WILL HAVE TO MAKE ALL 22 DISCRETIONARY DECISIONS. IF YOU WANT TO GIVE YOUR AGENT THE 23 RIGHT TO DELEGATE DISCRETIONARY DECISION-MAKING POWERS TO 24 OTHERS, YOU SHOULD KEEP THE NEXT SENTENCE, OTHERWISE IT 25 SHOULD BE STRUCK OUT.) 26 4. My agent shall have the right by written instrument 27 to delegate any or all of the foregoing powers involving 28 discretionary decision-making to any person or persons whom 29 my agent may select, but such delegation may be amended or 30 revoked by any agent (including any successor) named by me 31 who is acting under this power of attorney at the time of 32 reference. 33 (YOUR AGENT WILL BE ENTITLED TO REIMBURSEMENT FOR ALL 34 REASONABLE EXPENSES INCURRED IN ACTING UNDER THIS POWER OF SB1567 Engrossed -6- LRB9111460STcs 1 ATTORNEY. STRIKE OUT THE NEXT SENTENCE IF YOU DO NOT WANT 2 YOUR AGENT TO ALSO BE ENTITLED TO REASONABLE COMPENSATION FOR 3 SERVICES AS AGENT.) 4 5. My agent shall be entitled to reasonable compensation 5 for services rendered as agent under this power of attorney. 6 (THIS POWER OF ATTORNEY MAY BE AMENDED OR REVOKED BY YOU AT 7 ANY TIME AND IN ANY MANNER. ABSENT AMENDMENT OR REVOCATION, 8 THE AUTHORITY GRANTED IN THIS POWER OF ATTORNEY WILL BECOME 9 EFFECTIVE AT THE TIME THIS POWER IS SIGNED AND WILL CONTINUE 10 UNTIL YOUR DEATH UNLESS A LIMITATION ON THE BEGINNING DATE OR 11 DURATION IS MADE BY INITIALING AND COMPLETING EITHER (OR 12 BOTH) OF THE FOLLOWING:) 13 6. ( ) This power of attorney shall become effective on 14 ............................................................. 15 (insert a future date or event during your lifetime, such as 16 court determination of your disability, when you want this 17 power to first take effect) 18 7. ( ) This power of attorney shall terminate on 19 ............................................................. 20 (insert a future date or event, such as court determination 21 of your disability, when you want this power to terminate 22 prior to your death) 23 (IF YOU WISH TO NAME SUCCESSOR AGENTS, INSERT THE NAME(S) AND 24 ADDRESS(ES) OF SUCH SUCCESSOR(S) IN THE FOLLOWING PARAGRAPH.) 25 8. If any agent named by me shall die, become 26 incompetent, resign or refuse to accept the office of agent, 27 I name the following (each to act alone and successively, in 28 the order named) as successor(s) to such agent: 29 ............................................................. 30 ............................................................. 31 For purposes of this paragraph 8, a person shall be 32 considered to be incompetent if and while the person is a 33 minor or an adjudicated incompetent or disabled person or the 34 person is unable to give prompt and intelligent consideration SB1567 Engrossed -7- LRB9111460STcs 1 to business matters, as certified by a licensed physician. 2 (IF YOU WISH TO NAME YOUR AGENT AS GUARDIAN OF YOUR ESTATE, 3 IN THE EVENT A COURT DECIDES THAT ONE SHOULD BE APPOINTED, 4 YOU MAY, BUT ARE NOT REQUIRED TO, DO SO BY RETAINING THE 5 FOLLOWING PARAGRAPH. THE COURT WILL APPOINT YOUR AGENT IF 6 THE COURT FINDS THAT SUCH APPOINTMENT WILL SERVE YOUR BEST 7 INTERESTS AND WELFARE. STRIKE OUT PARAGRAPH 9 IF YOU DO NOT 8 WANT YOUR AGENT TO ACT AS GUARDIAN.) 9 9. If a guardian of my estate (my property) is to be 10 appointed, I nominate the agent acting under this power of 11 attorney as such guardian, to serve without bond or security. 12 10. I am fully informed as to all the contents of this 13 form and understand the full import of this grant of powers 14 to my agent. 15 Signed .................................................. 16 (principal) 17 (YOU MAY, BUT ARE NOT REQUIRED TO, REQUEST YOUR AGENT AND 18 SUCCESSOR AGENTS TO PROVIDE SPECIMEN SIGNATURES BELOW. IF 19 YOU INCLUDE SPECIMEN SIGNATURES IN THIS POWER OF ATTORNEY, 20 YOU MUST COMPLETE THE CERTIFICATION OPPOSITE THE SIGNATURES 21 OF THE AGENTS.) 22 Specimen signatures of I certify that the signatures 23 agent (and successors) of my agent (and successors) 24 are correct. 25 .......................... ............................. 26 (agent) (principal) 27 .......................... ............................. 28 (successor agent) (principal) 29 .......................... ............................. 30 (successor agent) (principal) 31 (THIS POWER OF ATTORNEY WILL NOT BE EFFECTIVE UNLESS IT IS 32 NOTARIZED AND SIGNED BY AT LEAST ONE ADDITIONAL WITNESS, 33 USING THE FORM BELOW.) 34 State of ............) SB1567 Engrossed -8- LRB9111460STcs 1 ) SS. 2 County of ...........) 3 The undersigned, a notary public in and for the above 4 county and state, certifies that ......................., 5 known to me to be the same person whose name is subscribed as 6 principal to the foregoing power of attorney, appeared before 7 me and the additional witness in person and acknowledged 8 signing and delivering the instrument as the free and 9 voluntary act of the principal, for the uses and purposes 10 therein set forth (, and certified to the correctness of the 11 signature(s) of the agent(s)). 12 Dated: ................ (SEAL) 13 .............................. 14 Notary Public 15 My commission expires ................. 16 The undersigned witness certifies that ................, 17 known to me to be the same person whose name is subscribed as 18 principal to the foregoing power of attorney, appeared before 19 me and the notary public and acknowledged signing and 20 delivering the instrument as the free and voluntary act of 21 the principal, for the uses and purposes therein set forth. 22 I believe him or her to be of sound mind and memory. 23 Dated: ................ (SEAL) 24 .............................. 25 Witness 26 (THE NAME AND ADDRESS OF THE PERSON PREPARING THIS FORM 27 SHOULD BE INSERTED IF THE AGENT WILL HAVE POWER TO CONVEY ANY 28 INTEREST IN REAL ESTATE.) 29 This document was prepared by: 30 ............................................................. 31 ............................................................" 32 The requirement of the signature of an additional witness 33 imposed by this amendatory Act of the 91st General Assembly 34 applies only to instruments executed on or after the SB1567 Engrossed -9- LRB9111460STcs 1 effective date of this amendatory Act of the 91st General 2 Assembly. 3 (Source: P.A. 86-736.) 4 Section 99. Effective date. This Act takes effect upon 5 becoming law.