Illinois Durable Power of Attorney
Illinois durable power of attorney requirements: sign before one witness and a notary under 755 ILCS 45/3-3. Durable by default; the notary cannot witness.
Introduction
A durable power of attorney is a legal document that lets you name someone you trust to manage your money, property, and business matters if you cannot handle them yourself. In Illinois that person is called your agent, or attorney-in-fact. The word durable is the key: a durable power of attorney keeps working even if you later become incapacitated and can no longer make decisions, which is usually why people create one. Illinois powers of attorney are durable by default. Under 755 ILCS 45/2-5, unless you state an earlier termination date, the agency continues until your death notwithstanding your later disability or incapacity, so no special durability language is required. To be effective under 755 ILCS 45/3-3, an Illinois statutory short form power of attorney for property must be signed by you, signed by at least one witness, and have your signature notarized. The notary may not also sign as a witness, and your agent or any successor agent is disqualified from acting as the witness. Illinois publishes that statutory short form for property, which includes a Notice to the Individual Signing and a Notice to Agent. This guide covers the financial and general durable power of attorney only; a health-care power of attorney is a separate Illinois instrument. Attorney review is available as an option before you sign.
Key Things to Know
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A durable power of attorney lets someone act for you. It names an agent, also called your attorney-in-fact, to handle your money, property, and business matters. Durable means the document keeps working even if you later become incapacitated, which is usually why people set one up.
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Illinois makes it durable by default. Under 755 ILCS 45/2-5, unless you state an earlier termination date, the agency continues until your death notwithstanding any lapse of time or your disability, incapacity, or the appointment of a guardian. You do not need to add special durability language.
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You need one witness AND a notary. Under 755 ILCS 45/3-3, an Illinois statutory short form power of attorney for property is not effective unless you sign it, at least one witness signs it, and your signature is notarized. Both the witness signature and the notarization are mandatory.
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The notary and witness must be different people. Under 755 ILCS 45/3-3, the notary public may not also sign as a witness, so two separate people fill those roles. Your agent or any successor agent named in the document is also disqualified from acting as the witness.
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Illinois publishes a statutory short form. The statutory short form power of attorney for property at 755 ILCS 45/3-3 is made up of a Notice to the Individual Signing, the form itself, and a Notice to Agent. It covers financial and property matters only and does not authorize health-care decisions.
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Some powers need express language. Under 755 ILCS 45/3-4, an agent acting under the statutory categories may not make gifts of your property, exercise powers to appoint to others, or change a beneficiary you have designated unless the document expressly grants that authority.
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Real-property use means recording. A power of attorney used to convey or affect title to real estate is recorded with the county recorder where the property is located, under the Conveyances Act, 765 ILCS 5/28.
Key decisions before you file
Before you file a Durable Power of Attorney in Illinois, a few decisions shape the document: which option to choose and what each one means. The Durable Power of Attorney guide walks through them.
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Illinois Requirements for Durable Power of Attorney
Under 755 ILCS 45/3-3, an Illinois statutory short form power of attorney for property is not effective unless you sign it, at least one witness signs it, and your signature is notarized. Both the witness signature and the notarization are mandatory.
Under 755 ILCS 45/3-3, the notary public may not also sign as a witness, so two separate people fill those roles. Your agent or any successor agent named in the power of attorney is also disqualified from acting as the witness.
Under 755 ILCS 45/2-5, an Illinois power of attorney is durable by default. Unless you state an earlier termination date, the agency continues until your death notwithstanding any lapse of time or your disability, incapacity, or the appointment of a guardian. No special durability language is required.
The statutory short form is effective when signed by default, but under 755 ILCS 45/3-3 you may make it springing by inserting a future date or event, such as a written determination by a physician that you are incapacitated, so the power first takes effect at that later time.
Illinois publishes a statutory short form power of attorney for property at 755 ILCS 45/3-3, made up of a Notice to the Individual Signing, the form itself, and a Notice to Agent. It covers financial and property matters only and does not authorize health-care decisions.
A power of attorney used to convey or affect title to real estate must be recorded. Under the Conveyances Act, 765 ILCS 5/28, an instrument relating to or affecting title to real estate is recorded with the county recorder where the property is located.
Under 755 ILCS 45/3-4, an agent acting under the statutory categories may not make gifts of your property, exercise powers to appoint to others, or change a beneficiary you have designated unless you expressly grant that authority in the special-instructions section of the form.
Under 755 ILCS 45/2-5, while you have capacity you may amend or revoke the agency at any time and in any manner communicated to the agent or to another person related to the subject matter of the agency. Put the revocation in writing, and if the document was recorded for real property, record the revocation too.
Frequently Asked Questions
A durable power of attorney is a legal document that lets you name an agent, also called an attorney-in-fact, to manage your financial and property matters. It is called durable because the agent's authority keeps working even if you later become incapacitated. Under 755 ILCS 45/2-5, an Illinois power of attorney is durable by default, so the agency continues until your death unless you state an earlier termination date, notwithstanding your disability or incapacity.
The difference is what happens if you become incapacitated. A durable power of attorney keeps the agent's authority in force after you lose capacity; a regular, nondurable one ends at that point. Illinois makes this easy: under 755 ILCS 45/2-5 an Illinois power of attorney is durable by default, so the authority survives your disability or incapacity unless you state an earlier termination date. You do not need to add special durability language.
Yes. Under 755 ILCS 45/3-3, an Illinois statutory short form power of attorney for property is not effective unless the principal's signature is notarized. The same section also requires at least one witness. The notary public and the witness must be two different people, because the notary may not also sign as a witness.
One. Under 755 ILCS 45/3-3, an Illinois power of attorney for property must be signed by at least one witness in addition to being notarized. The witness may not be the notary, and the agent or successor agent named in the document is disqualified from acting as the witness.
A springing power of attorney takes effect only on a future event rather than when signed. Under 755 ILCS 45/3-3, the statutory short form is effective when signed by default, but the principal may make it springing by inserting a future date or event, such as a court determination of disability or a written determination by a physician that the principal is incapacitated, so the power first takes effect at that later time.
Only if the document expressly grants that power. Under 755 ILCS 45/3-4, an agent acting under the statutory categories does not have power to make gifts of the principal's property, to exercise powers to appoint to others, or to change any beneficiary the principal has designated to take at death under a will, trust, joint tenancy, beneficiary form, or contract. To grant these powers, the principal must add express authorization in the special-instructions section of the form.
If the power of attorney will be used to convey or affect title to real estate, yes. The Illinois Power of Attorney Act itself imposes no general recording requirement, but under the Conveyances Act, 765 ILCS 5/28, a power of attorney relating to or affecting title to real estate is recorded in the county where the real estate is located. Record it with the county recorder before the agent uses it in a real estate transaction.
Under 755 ILCS 45/2-5, an agency may be amended or revoked by the principal, if the principal has the capacity to do so, at any time and in any manner communicated to the agent or to any other person related to the subject matter of the agency. Put the revocation in writing and give notice to the agent and to anyone relying on the document. If the power of attorney was recorded for real property under 765 ILCS 5/28, record the revocation too.