As attorneys serving clients throughout the Chicagoland area, we regularly advise individuals on decisions that extend beyond property division and support agreements. One of the most critical, but often overlooked decisions involves updating your power of attorney. This legal tool allows someone to make financial or medical decisions on your behalf if you become incapacitated. Choosing the right person is essential, especially when significant assets, business interests, or health care decisions are involved.
In Illinois, a power of attorney can be executed under the Illinois Power of Attorney Act (755 ILCS 45/1-1 et seq.), and it allows you to appoint someone as your “agent.” This agent can be given authority over property, finances, or health care. The person you name will step into your shoes if you’re unable to make decisions for yourself. While many people initially name their spouse, that arrangement usually needs to be changed during divorce or immediately after.
Failing to update your power of attorney documents after separation or divorce can create unintended consequences. For example, an estranged spouse could still have legal authority over your medical care or financial matters unless you revoke or revise the document. If you become seriously ill or injured before finalizing your divorce or updating your estate plan, this can lead to complications and conflict. That’s why we work closely with our clients to review all estate planning documents, especially powers of attorney, when a marriage ends.
Key Factors To Consider When Choosing A Power Of Attorney
When selecting someone to serve as your power of attorney, trust is the most important factor. The person you name should be reliable, organized, and willing to act in your best interest. For financial powers of attorney, we recommend choosing someone who understands how to manage money, track expenses, and communicate clearly with attorneys and financial institutions. For health care decisions, the person should respect your wishes and be prepared to make difficult choices under pressure.
It’s also essential to name a successor agent in case your primary agent is unwilling or unable to act. For clients with complex assets—such as business holdings, investment portfolios, or real estate—we often recommend appointing a trusted relative, adult child, or even a professional fiduciary who is familiar with managing these types of responsibilities.
In divorce situations, appointing a former spouse as your power of attorney is rarely appropriate unless your relationship remains amicable and both parties agree it makes sense. Under Illinois law, any power of attorney naming a spouse is automatically terminated upon divorce unless otherwise stated (755 ILCS 45/2-7(a)). Still, it’s best to formally revoke and replace the document to avoid confusion.
Frequently Asked Questions About Choosing A Power Of Attorney In Illinois
What Does A Power Of Attorney Actually Do?
A power of attorney allows someone else to act on your behalf when you are unable to do so yourself. That can include paying bills, managing property, handling legal issues, or making medical decisions. There are two main types in Illinois: one for property and one for health care. You can customize the authority your agent has and when it begins.
Can I Name More Than One Person As My Power Of Attorney?
Yes, Illinois law allows you to name co-agents, but we recommend this only if both people can work well together and communicate clearly. Conflicts between co-agents can cause delays and legal issues. Instead, it’s often better to name one agent and at least one successor agent to step in if the first cannot serve.
What Happens If I Don’t Have A Power Of Attorney?
Without a power of attorney, if you become incapacitated, a court will have to appoint a guardian to manage your affairs. This process can be time-consuming, expensive, and emotionally difficult for your family. Naming a power of attorney allows you to retain control over who makes decisions for you and how those decisions should be made.
Can My Power Of Attorney Make Changes To My Will?
No. A power of attorney cannot make or change a will in Illinois. Your agent can manage property, pay expenses, or make health care decisions, but they cannot alter your estate plan. That’s why it’s important to keep your will and other estate documents up to date and consistent with your power of attorney.
Can I Revoke A Power Of Attorney After It’s Signed?
Yes. You can revoke a power of attorney at any time, as long as you are mentally competent. To revoke it, you should do so in writing and notify your agent and any institutions or individuals who may rely on the document. We also recommend destroying all original and duplicate copies of the revoked power of attorney.
What Should I Do If I Suspect Someone Is Abusing A Power Of Attorney?
If you believe someone is misusing a power of attorney, you can petition the court to intervene. In Illinois, misuse of a power of attorney can lead to civil liability and even criminal charges if fraud or financial abuse is involved. You should consult with an attorney right away if you suspect abuse or mismanagement.
Call Bruning & Associates, P.C. For Guidance On Powers Of Attorney
At Bruning & Associates, P.C., we help individuals and families protect their rights and wishes. Choosing the right power of attorney is a critical step in protecting yourself and your future, especially during times of transition.
To schedule a free consultation with the Chicago estate planning attorney at Bruning & Associates, P.C., simply call (815) 455-3000. Our offices in Chicago, Crystal Lake, and Schaumburg serve clients across the Chicagoland metro, and we’re ready to help you put the right plan in place.