How to Create a Durable Power of Attorney

 Posted on September 15, 2023 in Estate Planning

A durable power of attorney (POA) is a legal document that gives someone you trust the power to make decisions about your finances and health care matters if you become unable to do so yourself. The POA remains in effect even if you become incapacitated.

To create a durable POA in Illinois, you must:

• Be at least 18 years old and of sound mind

• Sign the POA in front of a notary public and at least one witness

• The witness cannot be your agent, your spouse, your descendant, or your sibling

• Include specific language in your POA, such as warnings and notices

Creating a power of attorney can be complex and overwhelming. There are a lot of ways in which the process can go wrong, namely in giving up powers you never intended. Speaking with an attorney is the best course of action to understand exactly what will benefit you most when filling out the form for a POA.

Agent and Principal

The person who signs a power of attorney is called the principal. The power of attorney gives the principal's agent or attorney-in-fact the legal authority to make property, financial, and other legal decisions on the principal's behalf. The word "attorney" in this context refers to anyone who is authorized to act on behalf of another person and does not necessarily mean a lawyer.

Power of Attorney for Property

Financial POAs are one of the most common types of POAs. They allow the principal to appoint an agent to manage their finances in the event of the principal's incapacity or absence. The document typically lists several types of financial transactions that the agent can perform. 

Power of Attorney for Health Care

A health care power of attorney (HCPA) is a legal document that allows you to appoint someone you trust (called your health care agent) to make health care decisions for you if you become unable to make them yourself. This includes decisions about your treatment, medications, and end-of-life care.

You can also use an HCPA to communicate your wishes about life-sustaining treatments, such as whether or not you want to be placed on a ventilator or have your feeding tube removed. It is important to have an HCPA in place, even if you are healthy today. You never know when you may need it.

Differences Between Durable and Regular POA

There are two distinct standard provisions for a POA in Illinois: durable and regular. A durable POA is effective immediately and is not revoked if the principal becomes incapacitated. A regular POA only goes into effect once the principal has been confirmed incapacitated by two examining physicians. In Illinois, a power of attorney is considered durable unless it specifically states otherwise. This means that it will remain in effect even if you become incapacitated.

Filling Out a POA Form

You can use a statutory form for a durable POA, but because so much is at stake with POA agreements, the best option is to consult with an attorney who can then draft a POA for you.

The POA should specify the powers you are giving to your agent. These powers can include:

• Managing your finances

• Selling your property

• Making medical decisions

• Making funeral arrangements

You can also specify the conditions under which your agent can act, such as if you become incapacitated or if you move to a different state. Once you have created the POA, you should give a copy to your agent and your lawyer. You should also keep a copy in a safe place.

Contact a Wheaton, IL Power of Attorney Lawyer

It is never too early to establish power of attorney for your health care and finances. However, you should know what to expect when filling out the forms. The principal should always know exactly what powers they are giving away to the agent. An agent should understand exactly what they are agreeing to before signing.

To make matters easier and more clear, you consult a DuPage County, IL power of attorney lawyer. The NN Legal Group can assist you in the drafting and understanding of all documents related to POA. Before you make a decision, call the office at 630-474-0925 to go over the legalities of a POA with an experienced attorney.