What is a Durable Power of Attorney?
A power of attorney is a document which allows you to appoint a person to act as your agent. An agent is a person who is authorized to act for another person. The person who appoints the agent is called the principal; the agent is also called the attorney-in-fact. If you have appointed an agent by a power of attorney, acts of the agent within the authority spelled out in the power of attorney are legally binding on you, just as though you performed the acts yourself. The power of attorney can authorize the attorney-in-act to perform a single act or a multitude of acts repeatedly.
Who May Be Appointed Under a Power of Attorney?
The agent appointed by power of attorney may be any adult, and is often a close relative, lawyer or other trusted individual. The person appointed does not have to be a resident of the state of Illinois.
"Durable" Power of Attorney
Many people are unaware that an ordinary power of attorney is revoked, and the agent's power to act for the principal automatically stops, if the principal becomes incapacitated.
Under Illinois law, and the law of many other states, a power of attorney with proper wording may be made "durable." This means that the power of the agent to act on the principal's behalf continues despite the principal's incapacity, whether or not a court decrees the principal to be incapacitated.
Through a durable power of attorney, an agent may continue to act on your behalf even after you have had a stroke or other incapacitating illness or accident. If the power of attorney so provides, the agent can use your funds to pay your bills, can contract for nursing home services for your benefit and can make basic health care decisions for you.
An aging parent may wish to give a durable power of attorney to a responsible adult child so that the child can act on the parent's behalf and carry on routine matters in the event the parent is disabled or incapacitated. In many instances, this arrangement is far better than making the child the joint owner of the parent's bank accounts and other property and assets.
It is possible to create a durable power of attorney so that it will only go into effect when the principal is incapacitated or when some other stipulated event or condition occurs. This is ordinarily called a springing durable power of attorney.
Revocation of Durable Power of Attorney
The death of the principal revokes even a durable power of attorney, except for a third person relying on the power of attorney who does not know of the death. Also, a durable power of attorney may be revoked by the principal at any time, either orally or in writing. It is recommended that, when possible, the revocation be written.
Caution in Preparing and Granting Powers of Attorney
An effective durable power of attorney needs to be very carefully worded and you should seek the assistance of an Illinois lawyer who practices in this area. Furthermore, you should use great care in the selection of your attorney-in-fact. Remember, you are trusting not only your property, but perhaps your life, to the person you appoint.
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