The Duties and Responsibilities Associated with a Power of Attorney

Web Admin - Thursday, October 16, 2014

power of attorney rights and responsibilitiesIllness, injury, or age can often render a person unable to take proper care of their finances and their property. As a solution to this issue, Illinois law allows people to set up a power of attorney for property. This is a legal document that lets a person, the principal, designate a trusted agent to handle the principal's property with the principal's best interests in mind. This document gives the agent a variety of legal powers over the principal's money and property, but it also comes with legal duties that the principal must fulfill. Agents need to be aware of both of these things to properly complete their jobs without bringing liability onto themselves.

The Powers Granted

The powers granted to an agent under a power of attorney vary depending on the principal's wishes, but in 2011 Illinois created a general form with 15 default powers that a principal can bestow upon an agent. These powers include:

-The authority to buy or sell real estate on behalf of the principal;

-The authority to deal with banks and safe deposit boxes for the principal;

-The authority to represent the principal in insurance transactions; and

-The authority to buy and sell stocks and bonds for the principal.

The form also includes extra sections to place limitations on these powers or to add extras. For instance, the principal can allow the agent to buy and sell stocks and bonds, but also forbid them from selling a particular stock. Similarly, the power to give gifts on the principal's behalf is not included in the default form, but a principal could add it if they so chose.

The Duties of the Agent

Importantly, by taking on these powers, the agent enters into a “fiduciary” relationship with the principal, meaning that they have a duty to act in the principal's best interests. In addition to that general duty, the law also imposes other, more specific duties on the agent. For instance, the agent is required to act in accordance with any estate plans that the principal has put in place to the extent possible. Agents also have a duty to keep good financial records of any “receipts, disbursements, and significant actions conducted for the principal.” The law also forbids agents from taking certain actions. These forbidden actions include commingling the principal's funds with their own, taking loans from the principal, and exceeding the authority granted by the power of attorney.

Powers of attorney are complex legal documents, and managing them incorrectly can open the agent up to legal liability. If you are considering a power of attorney, contact an Arlington Heights estate planning attorney serving the northwest suburbs to better understand your duties as well as other potential estate planning options. We assist clients throughout Inverness, Palatine, Schaumburg, Long Grove, Kenilworth, Riverwoods, and the rest of the Chicagoland area.

About the Author: Attorney Jay Andrew is a founding partner of Drost, Gilbert, Andrew & Apicella, LLC. He is a graduate of the University of Dayton School of Law and has been practicing in estate planning, probate, trust administration, real estate law, residential/ commercial leasing, contracts, and civil litigation. Since 2005, Jay has been a Chair of the Mock Trial Committee for the Annual Northwest Suburban Bar Association High School Mock Trial Invitation which serves over 240 local Illinois students each year.

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