Whether it’s medical treatment or managing their money, people who become disabled need someone to help them make big, complicated decisions. In Illinois, the concepts of Power of Attorney and guardianship allow a person to appoint or have appointed for them a person who can handle their affairs. Power of Attorney and guardianship are two Illinois statutory schemes that allow another person to handle the affairs of another with the authority of law. Power of Attorney is “[a]n instrument granting someone authority to act as agent or attorney-in-fact for the grantor” Black’s Law Dictionary (11th ed. 2019) In a Power of Attorney, all of the power to appoint an agent is with the individual who is appointing that agent. The Illinois Power Of Attorney Act “recognizes that each individual has the right to appoint an agent to make property, financial, personal, and health care decisions for the individual but that this right cannot be fully effective unless the principal may empower the agent to act throughout the principal’s lifetime, including during periods of disability, and have confidence that third parties will honor the agent’s authority at all times.” 755 ILCS 45/2-1 The power of attorney may even extend past the point of the individual being able to make their own decisions (which is why it can be confused with guardianship because those are the same conditions). “Unless the agency states an earlier termination date, the agency continues until the death of the principal, notwithstanding any lapse of time, the principal’s disability or incapacity or appointment of a guardian for the principal after the agency is signed.” 755 ILCS 45/2-5 “All acts of the agent within the scope of the agency during any period of disability, incapacity or incompetency of the principal have the same effect and inure to the benefit of and bind the principal and his or her successors in interest as if the principal were competent and not a person with a disability.” 755 ILCS 45/2-6 Power of Attorney exists independently of a court proceeding and can only rarely be undone by a court. “The statutory scheme makes it clear that this agency is strictly protected from judicial intervention except under a very narrow set of rigid procedural circumstances.” In re Estate of Beetler, 2017 IL App (3d) 160248 The procedure to gain Illinois court supervision of a power of attorney is explicit. “(a) Upon petition by any interested person (including […]
