Page 7 - John Hundley 2011

Sharp Thinking

No. 44 Perspectives on Developments in the Law from The Sharp Law Firm, P.C. March 2011

New Duties Loom for Agents

Under Illinois Powers of Attorney

By John T. Hundley, Jhundley@lotsharp.com, 618-242-0246

Substantial new duties – and possible penalties – loom for agents under Illinois powers of attorney
for property, financial affairs and health care as a result of pending amendments to the Illinois Powers
of Attorney Act (755 ILCS 45).
The significant new reforms were enacted by P.A. First of 3 Issues
96-1195, also known as HB 6477, approved by the P.A. 96-1195 makes sweeping changes to the
legislature and the governor last year, but with a law governing powers of attorney for both
delayed effective date of July 1, 2011 so that persons health care and for property and financial
involved with such powers could make appropriate affairs. This issue discusses amendments to
the Durable Power of Attorney Law, 755 ILCS
adjustments. Despite the substantial lead time, the 45/2-1 et seq. Future issues, to be provided
changes appear poised to take many persons by imminently, will address the changes applic-
surprise. able to the property POA form and to health-
care powers respectively.
In amendments to the Durable Power of Attorney
Law (755 ILCS 45/2-1 et seq.), P.A. 96-1195:

► Defines “incapacitated” and gives the agent a seemingly absolute right to rely on written
record of incapacitation made by a physician;

► Makes express that a principal must have capacity in order to revoke a power;

► Provides that execution of a power of attorney does not revoke prior powers unless it
expressly says so;

► Adds to the duties of an agent the duty to act “in good faith” with “competence and diligence”,
retains the duty of due care, and adds duties to “act in accordance with the principal’s
expectations to the extent actually known to the agent and otherwise in the principal’s best
interests”;

► Retains the duty to keep records of all receipts, disbursements and significant actions, and
requires delivery of such records upon request to the principal, his/her guardian, other
fiduciaries of the principal, care providers, certain state officials, the personal representative,
successors in interest, and courts;

► States that an agent is personally responsible for violations of the act and must “restore the
value of the principal’s property to what it would have been had the violation not occurred”

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Sharp Thinking is an occasional newsletter of The Sharp Law Firm, P.C. addressing developments in the law which may be of interest. Nothing contained in Sharp
Thinking shall be construed to create an attorney-client relation where none previously has existed, nor with respect to any particular matter. The perspectives herein
constitute educational material on general legal topics and are not legal advice applicable to any particular situation. To establish an attorney-client relation or to obtain legal
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