Instrument: Durable Power of Attorney (DPOA)
What is it for?
The “durable power of attorney” (DPOA) allows an adult (the “principal”) to authorize another (the “agent”) to make property and financial decisions for the principal.
What does it do?
The DPOA allows a principal to appoint an agent to make either a broad or limited range of property and financial decisions on the principal’s behalf. The principal may specify in the DPOA the rights, powers, duties, limitations, immunities and other terms that apply to the agent’s authority and to all persons dealing with the agent. 755 Ill. Comp. Stat. Ann. 45/2-4(c). Depending on the terms of the DPOA, the agent may make a broad range of decisions regarding the principal’s property, including the principal’s Social Security benefits. For health care decisions, additional rules apply. 755 Ill. Comp. Stat. Ann. 45/4-3 et seq.
The DPOA is considered to be “durable,” which means the agent’s authority continues during a period when the principal lacks capacity or after a guardian is appointed. 755 Ill. Comp. Stat. Ann. 45/4-5.
In making decisions for the principal, the agent must act both in good faith for the benefit of the principal using due care, competence, and diligence, and also consistently with the terms of the DPOA. 755 Ill. Comp. Stat. Ann. 45/4-7(a).
Third parties must generally accept decisions made by the agent as if the principal had made them. They may, however, request the agent for a certification of the DPOA’s validity. 755 Ill. Comp. Stat. Ann. 45/4-8.
How does one make it?
The DPOA must be in writing, signed by the principal, and signed by an eligible adult witness to the principal’s signing, as well as notarized. 755 Ill. Comp. Stat. Ann. 45/3-3.6(a).
When does it come into effect?
The principal may specify in the DPOA when the agent’s authority will come into effect. 755 Ill. Comp. Stat. Ann. 45/2-4(a). For example, the agent’s authority may come into effect either immediately or only when the principal becomes “incapacitated,” which means the principal is “not fully able to manage his person or estate” due to a developmental or other disability. 755 Ill. Comp. Stat. Ann. 45/2-3(c-5) & 5/11a-2. Alternatively, a licensed physician may determine that the principal lacks “decision making capacity” in a written statement signed within 90 days of a personal examination of the principal. 755 Ill. Comp. Stat. Ann. 45/2-3(c-5).
How long does it last?
Unless the DPOA states an earlier termination date, the agent’s authority continues until the principal either dies or revokes or amends the DPOA. 755 Ill. Comp. Stat. Ann. 45/2-5.
How does one end it?
The principal may revoke a DPOA at any time provided 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. Note that executing a subsequent DPOA does not automatically revoke a prior DPOA unless the subsequent DPOA specifically states that it does so. 755 Ill. Comp. Stat. Ann. 45/2-5.
A court may also revoke a DPOA upon petition by any interested person that the DPOA is no longer necessary. 755 Ill. Comp. Stat. Ann. 45/2-10.
What does an example look like?
Illinois provides a statutory DPOA form at 755 Ill. Comp. Stat. Ann. 45/3-3. Illinois Legal Aid Online has an interactive tool for creating a DPOA with instructions here.
What else should one know?
Illinois’ DPOA is not based on the Uniform Power of Attorney Act.
Updated August 2022