Whether it’s medical treatment or managing their money, people who become disabled need someone to help them make big, complicated decisions. In Illinois, the concepts of Power of Attorney and guardianship allow a person to appoint or have appointed for them a person who can handle their affairs.
Power of Attorney and guardianship are two Illinois statutory schemes that allow another person to handle the affairs of another with the authority of law.
Power of Attorney is “[a]n instrument granting someone authority to act as agent or attorney-in-fact for the grantor” Black’s Law Dictionary (11th ed. 2019)
In a Power of Attorney, all of the power to appoint an agent is with the individual who is appointing that agent.
The Illinois Power Of Attorney Act “recognizes that each individual has the right to appoint an agent to make property, financial, personal, and health care decisions for the individual but that this right cannot be fully effective unless the principal may empower the agent to act throughout the principal’s lifetime, including during periods of disability, and have confidence that third parties will honor the agent’s authority at all times.” 755 ILCS 45/2-1
The power of attorney may even extend past the point of the individual being able to make their own decisions (which is why it can be confused with guardianship because those are the same conditions).
“Unless the agency states an earlier termination date, the agency continues until the death of the principal, notwithstanding any lapse of time, the principal’s disability or incapacity or appointment of a guardian for the principal after the agency is signed.” 755 ILCS 45/2-5
“All acts of the agent within the scope of the agency during any period of disability, incapacity or incompetency of the principal have the same effect and inure to the benefit of and bind the principal and his or her successors in interest as if the principal were competent and not a person with a disability.” 755 ILCS 45/2-6
Power of Attorney exists independently of a court proceeding and can only rarely be undone by a court.
“The statutory scheme makes it clear that this agency is strictly protected from judicial intervention except under a very narrow set of rigid procedural circumstances.” In re Estate of Beetler, 2017 IL App (3d) 160248
The procedure to gain Illinois court supervision of a power of attorney is explicit.
“(a) Upon petition by any interested person (including the agent), with such notice to interested persons as the court directs and a finding by the court that the principal lacks either the capacity to control or the capacity to revoke the agency, the court may construe a power of attorney, review the agent’s conduct, and grant appropriate relief including compensatory damages. (b) If the court finds that the agent is not acting for the benefit of the principal in accordance with the terms of the agency or that the agent’s action or inaction has caused or threatens substantial harm to the principal’s person or property in a manner not authorized or intended by the principal, the court may order a guardian of the principal’s person or estate to exercise any powers of the principal under the agency, including the power to revoke the agency, or may enter such other orders without appointment of a guardian as the court deems necessary to provide for the best interests of the principal.” 755 ILCS 45/2-10
A guardian is “someone who has the legal authority and duty to care for another’s person or property, especially because of the other’s infancy, incapacity, or disability.” Black’s Law Dictionary (11th ed. 2019)
Unlike Power of Attorney, an Illinois guardianship is a completely court-appointed and court-supervised process designed for people who cannot make their own decisions any longer.
“Upon the filing of a petition by a reputable person or by the alleged person with a disability himself or on its own motion, the court may adjudge a person to be a person with a disability, but only if it has been demonstrated by clear and convincing evidence that the person is a person with a disability…If the court adjudges a person to be a person with a disability, the court may appoint (1) a guardian of his person, if it has been demonstrated by clear and convincing evidence that because of his disability he lacks sufficient understanding or capacity to make or communicate responsible decisions concerning the care of his person, or (2) a guardian of his estate, if it has been demonstrated by clear and convincing evidence that because of his disability he is unable to manage his estate or financial affairs, or (3) a guardian of his person and of his estate.” 755 ILCS 5/11a-3
Just because a guardian is appointed by a court does not make a guardianship any more official or powerful than a competing agency created by at Power of Attorney.
“[T]he Probate Act recognizes the agency created by a valid power of attorney may survive a disability and the appointment of a plenary guardian.” In re Estate of Beetler, 2017 IL App (3d) 160248
“Absent court order pursuant to the Illinois Power of Attorney Act directing a guardian to exercise powers of the principal under an agency that survives disability, the guardian has no power, duty, or liability with respect to any personal or health care matters covered by the agency.” 755 ILCS 5/11a-17(c)
In Illinois, Power of Attorney trumps a guardianship. The Power of Attorney will get to make decisions even if a guardian is appointed. By way of example, if Fred appoints Barney as his power of attorney but Fred later becomes disabled and Wilma becomes Fred’s guardian, Barney’s Power of Attorney survives and trumps any agency that Wilma has as Fred’s guardian.
I am a divorce attorney who explores legal ideas by writing about them even if I don’t practice in that area. If you need help with a Power of Attorney or guardianship, give my office a call and I will gladly make a recommendation to a probate/guardianship attorney.