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Illinois Power of Attorney for Property

The Durable Power of Attorney for Property (“DPAP”) gives your named agent various powers to deal with your property during your lifetime, including during periods of incapacity. The DPAP can be made to take effect immediately, or upon finding of disability, and can be drawn to give your agent very broad or very narrow powers. Since a DPAP is strictly construed, the agent will only have the powers specifically enumerated in the document. Usual powers include safe deposit transactions, business operations and financial institution transactions, among others. Importantly, you may also elect to give your agent the power to make gifts, exercise powers of appointment, transfer assets into trust and name/change beneficiaries of retirement accounts.

Just as with the DPAHC, the choice of agents should be made very carefully and discussed in advance. Unfortunately though, DPAP’s are not nearly as well recognized and understood as DPAHC’s. Financial institutions and title companies, for example, are well known for their wariness in accepting the use of DPAP’s. For this reason, living trusts are often a much more efficient and easier way of providing for your designated fiduciary to deal with your property upon your incapacity. Living trusts are more widely accepted and your successor trustee is under a duty to act and to act in accordance with the terms and powers more clearly defined in your trust for your benefit and/or for the benefit of your spouse and dependent, if desired.

Related statute:

* Please note that while Illinois statute provides a short form statutory power of attorney, specific powers can and should be added and subtracted as is appropriate for an individual’s situation. This should be done carefully as DPAP’s are strictly construed and because it is generally desirable to retain “statutory power” status. This should be done in consultation with an estate planning attorney.

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