Bulletin: IL2011004

Dear Associates:

Public Act 096-1195, which amends 755 ILCS 45, became effective July 1, 2011 and amended the Illinois Power of Attorney Act.  It amended various sections of the act.  Below are the major highlights of the amendments. 

Execution Requirements § 755 ILCS 45- 3.3

• The form must be signed by the Principal, must designate the agent and agent’s powers, must be witnessed by at least one witness and be notarized. 

Prescribed Form of POA § 755 ILCS 45- 3.3

• Statutory Short Form Power of Attorney for Property was amended. It establishes that "statutory property power" prescribed by the Statute consists of  (1) Notice to the Individual Signing the Illinois Statutory Short Form Power of Attorney for Property (there is a statement in the notice that informs the Principal that unless the Principal limits the duration of the POA it will be effect for the lifetime of the Principal both before or after the Principal becomes incapacitated); (2) Illinois Statutory Short Form Power of Attorney for Property; and (3) Notice to Agent. It also establishes that a power of attorney in substantially the form prescribed with item (1) in 14-point type and notarized as prescribed shall have the same meaning and effect prescribed in the act. A Power of Attorney will be in substantially the prescribe form even if the language in item (1) is not set forth on a separate page but incorporated in the document and is distinguished in some way, such as bold face or different typeface. This section sets forth samples of the forms. In the form it prescribes the format of the signature to be "(Principal’s Name) by (Agent’s Name) as Agent" (also acceptable (Principal’s Name) by (Agent’s Name) as Attorney-in-Fact").  POA must be signed by at least one witness and notarized (notary may not also sign as witness). The form now has a Notice to Agent which sets forth the duties and obligations of the Agent.

Limitations on who may witness Property Powers § 755 ILCS 45- 3.3.6

• This section restates that all Powers of Attorney must be witnessed and notarized.  This section lists who may not act as witness. (check this section for specifics) 

Added Definition of Incapacitated § 755 ILCS 45- 2-3 (c-5)

• The definition of "Incapacitated" when the principal is under a legal disability as defined in Sec. 11a-2 of the Probate Act. This will be determined on written evidence by a licensed physician as to lack of capacity; written record of determination within 90 days of examination and that record is delivered to the agent.  

Duration of Agency § 755 ILCS 45- 2-5

• Duration – unless it states an earlier termination, the agency continues until death.  Agency may be revoked or amended at any time provided principal has the capacity to do so. The execution of a power of attorney does not revoke a previously executed power of attorney unless it is provided that the previous power of attorney is revoked and all powers under that power of attorney are revoked.  

Reliance on Document purporting to establish an Agency § 755 ILCS 45- 2-8

• Any person acting in good faith reliance on a copy of a document purporting to establish an agency will be fully protected and released to same extent as though the reliant had dealt directly with the named principal.  The new provision provides that the Agent shall provide an affidavit; or Section 2-8 provides for an Agent’s Certification and Acceptance of Authority and the form for it which is to be provided upon demand from a person who in good faith is relying on the Power of Attorney.

Power of Attorney executed in another state or country and pre-existing § 755 ILCS 45- 2-10.6

• A POA executed in another state or country is valid and enforceable in this State if its creation complied when executed with:

1. the law of the state or country in which the POA was executed

2. the law of this State

3. the law of the state or country where the principal is domiciled, has a place of abode or
business or is a national

4. the law of the state or country where the agent is domiciled or has a place of business

• It further states that a Power of Attorney executed in this State prior to the effective date of this act is valid and enforceable if it complied with the prior statute.  

STEWART TITLE GUARANTY COMPANY POLICY 

Stewart Title believes that it can and should maintain its existing underwriting requirements regarding the scrutiny required to accept a POA and still comply with the new law. Consequently, attached are our underwriting guidelines for insuring a transaction involving the use of a Power of Attorney. Finally, please take time to review the statute, which also includes a section on Health Care Powers of Attorney (755 ILCS 45-4), and feel free to discuss issues as they come up with Stewart Title's Illinois Underwriting counsel.
 
If you have any questions relating to this or other bulletins, please contact a Stewart Title Guaranty Company underwriter.

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