Powers of Attorney and Advance Directives in Illinois

Whoever you name in a power of attorney, and if you have named no one, whoever a court appoints. Illinois has two statutory short forms under the Illinois Power of Attorney Act, 755 ILCS 45: a power of attorney for property, which lets your agent handle money, real estate and tax matters, and a power of attorney for health care, which lets your agent make medical decisions and carry out your wishes about life-sustaining treatment. Without them, your family petitions the Probate Division for a guardianship, and the judge chooses the guardian and supervises every major decision.

The property power does: the statutory form requires your signature, the signature of one witness, and a notary's acknowledgment, and the notary may not also serve as the witness. The health care power does not: it requires one witness and no notary, and the form itself says there is no need to have it notarized. We notarize both anyway when we supervise a signing, because an out-of-state institution may ask.

When you say it does. The property form takes effect when signed unless you insert a later date or event, such as a physician's written determination that you are incapacitated. The health care form offers three choices: authority only when you cannot decide for yourself, that plus immediate access to your medical records, or authority starting now. Under 755 ILCS 45/2-5 the agency continues until your death despite later incapacity, unless you set an earlier end date. Most clients choose immediate effect so the agent can act without proving incapacity to a bank.

Yes, at any time while you have capacity, in any manner communicated to the agent or to anyone dealing with the agent under 755 ILCS 45/2-5. A written, signed and dated revocation delivered to the agent and to each bank or provider holding a copy is the clean way to do it. Signing a new power of attorney does not revoke an old one unless the new document says so. A judgment of divorce or legal separation automatically treats a spouse-agent as if they had died.

It is the form written into the Illinois Power of Attorney Act, 755 ILCS 45. There are two: the statutory short form power of attorney for property in Section 3-3, and the statutory short form power of attorney for health care in Section 4-10. Each begins with a notice to the person signing, lists the powers in plain terms, and ends with a notice to the agent. Banks, hospitals and title companies recognize the statutory forms on sight, which is the main reason to use them rather than a custom document.

The property power lets your agent handle money and property: bank accounts, bills, real estate, taxes, insurance, retirement accounts and litigation. The health care power lets your agent make medical decisions, consent to or refuse treatment, choose providers and facilities, and carry out your wishes about life-sustaining treatment. They are separate documents with different signing rules, and the same person may serve as agent under both, or you may choose different people.

A declaration under the Illinois Living Will Act, 755 ILCS 35, that if you have a terminal condition, death-delaying procedures are not to be used to prolong your dying. It must be signed by you and witnessed by two adults. It covers only that one situation and gives no one authority to make other decisions, which is why it is a companion to the health care power of attorney, not a substitute for it.

Someone petitions the Probate Division for a guardianship under Article XIa of the Probate Act. The court must find by clear and convincing evidence that you are a person with a disability who cannot manage your person or estate, and it then appoints a guardian it selects, who reports to the court. In Cook County the new-case fee for a guardianship of a disabled adult is $379. For medical decisions only, the Health Care Surrogate Act lets a provider turn to family in a fixed order, starting with a guardian, then spouse, then adult children, but a surrogate has no authority over property.