Page 10 - John Hundley 2011

descendants, of an agent or successor agent; and

► agents and successor agents for property.

The disqualification of owners and operators of health care facilities extends to directors and
executive officers of a corporation, but not to the corporation’s other employees.

The statutory form expressly provides that it revokes all prior powers of attorney for property.
Though the form does not indicate such, the language revoking prior powers plainly may be
stricken, because the amendatory act recognizes the general rule that
execution of a power does not necessarily revoke prior powers (see Sharp
Thinking No. 44) and because in the property area a sophisticated principal
may well have two or more agents dealing with separate transactions at the
same time.

The revised statutory form has improved language respecting the
elements of durability – i.e., when it is and is not in effect. Durability was a
key goal of the prior statute but the language concerning same was so
cumbersome it often took a lawyer to fill the form out properly. Part of the
improvement stems from the amendments’ definition of the concept of
incapacitation (see Sharp Thinking No. 44).
Hundley

The statutory form remains optional; other forms are permitted provided they (1) are signed by
the principal, (2) designate the agent and his powers, (3) are signed by at least one witness to the
principal’s signature, and (4) are signed or acknowledged by the principal in front of a notary.

That fact and an email from attorney Mark Palmer in Champaign, Illinois,
point out that Sharp Thinking No. 44 was misleading
agents. Co-agents are prohibited when using the OOPS!
in stating that P.A. “prohibits” appointment of co-

statutory short-form power of attorney only.

But because that statutory form is optional, co-agents may be appointed
when not using the statutory form, and P.A. 96-1195 provides rules for
decision-making when co-agents are appointed in such other forms. As a
general rule, majority rule is required, but the statute recognizes that in some cases “prompt action”
may be required to avoid “irreparable injury to the principal’s interests” or to accomplish the purposes
of the power. In such instances, the statute provides a certification form which less than a majority of
the co-agents may execute and provide to the third party with whom business is sought to be
transacted. The statute appears to provide substantial protection to the third party in dealing with less
than all the co-agents in such circumstances, but whether third parties will find such certifications
sufficient to assuage their concerns is unclear. The bottom line is that appointment of co-agents
generally will be a bad idea.
John\SharpThinking\#45.doc

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