Power of attorney, health care directive and guardianship in Illinois

Financial power of attorney in Illinois

Law and official form

Law

Illinois Power of Attorney Act; Article III is the 'Statutory Short Form Power of Attorney for Property Law'

Uniform Power of Attorney Act

No

Official form

Illinois Statutory Short Form Power of Attorney for Property (with the Notice to the Individual Signing and the Notice to Agent)Published by Illinois Department on Aging; the form text is also printed in 755 ILCS 45/3-3 on the General Assembly site

You do not have to use it.

Using the form is optional; other forms may be used. The form has three parts: the Notice to the Individual Signing (a cover sheet), the form itself and the Notice to Agent. You strike out any category of powers you do not want; a category not struck out is granted. You may name successor agents but not co-agents on this form. It must be signed by one witness and notarized. The Department on Aging PDF footer reads 'Based on 755 ILCS 45/3-3 (eff. July 27, 2015)'.

Law: 755 ILCS 45/3-1, 3-3(b)

Law: 755 ILCS 45/1-1, 3-2; 755 ILCS 45/3-3, 3-4, 2-10.5(a)

Signing rules

How to sign

Sign your power of attorney for property in front of one witness and a notary public. Both the statutory form and any other ('nonstatutory') property power must be signed by at least one qualified witness and acknowledged before a notary.

Who signs

You (the principal) sign. The Act does not set out a rule for someone else signing for you on a property power.

Notary

Required

Witnesses

1

Who cannot witness

At least one witness must sign, and your signature must be notarized. The notary may not also sign as a witness. None of these may be the witness or the notary: your attending physician or mental health service provider, or a relative of either; an owner or operator (or a relative of an owner or operator) of a health care facility where you are a patient or resident, including directors and executive officers of a corporate operator; a parent, sibling or descendant, or the spouse of a parent, sibling or descendant, of you or of any agent or successor agent (by blood, marriage or adoption); or any agent or successor agent. A second witness is optional.

Source: the form notes other jurisdictions may require two

Agent's acknowledgment

No agent signature is needed to make the power of attorney valid. When a bank or other third party asks, the agent must give an affidavit or the 'Agent's Certification and Acceptance of Authority' (separate versions exist for successor agents and co-agents). The agent must be given the Notice to Agent.

Electronic signing

A power of attorney that is durable under Article II, an agent's certification and an advance directive are 'nontestamentary estate planning documents': they may be signed electronically, notarized electronically, and witnessed electronically, and a requirement that a witness be in your presence is met by real-time 'electronic presence'. Any document other than a will may also be witnessed by audio-video communication under the procedure in the Act.

Law: 755 ILCS 6/1-20, 11-25, 11-35, 11-40, 15-5

Law: 755 ILCS 45/3-3(b), (d); 3-3.6; 2-8(a)-(b); 3-3(e)

Durable and springing

Is it durable?

Unless the power of attorney gives an earlier end date, it continues until your death no matter how much time passes, and even if you become disabled or incapacitated or a guardian is appointed.

Law: 755 ILCS 45/2-5

Durable unless it says otherwise?

Yes: it continues if you lose capacity unless it says otherwise.

Starting later (springing)

You can say in the document when the agency begins and ends. On the statutory form it takes effect when signed unless you fill in paragraph 6 with a future date or event, such as a court finding of disability or a physician's written determination of incapacity. Under the Act you are 'incapacitated' if a court has found you to be under a legal disability, or if a physician licensed to practice medicine in all its branches examined you, determined you lack decision-making capacity, signed a written record within 90 days after the exam, and the record was delivered to the agent.

Law: 755 ILCS 45/2-4(a); 755 ILCS 45/3-3, paragraph 6; 755 ILCS 45/2-3(c-5)

What an agent can and cannot do

Needs express permission

• Make gifts of your property
• Exercise powers of appointment
• Change a beneficiary you named to take your property at death (under a will, trust, joint tenancy, beneficiary form or contract)
• Name or change joint tenants
• Revoke or amend a trust you can revoke or amend, or make a trustee pay income or principal to the agent (needs specific authority and a specific reference to the trust)
• Withdraw from accounts titled in the name of a trust governed by the Illinois Trust Code (needs specific reference to the trust)
• Delegate discretionary decision-making to others (statutory form paragraph 4; strike it if you do not want this)

No power of attorney can

An agent under the statutory property power may not make or change your will. The power of attorney does not let the agent appear in court for you as a lawyer unless the agent is a licensed Illinois attorney.

Law: 755 ILCS 45/3-4(n); 755 ILCS 45/3-3, Notice

Law: 755 ILCS 45/3-4 (opening paragraph, (b), (n)); 2-9; 3-3 paragraphs 3-4

Agent duties, pay and court review

Agent duties

• No duty to act at all, but once acting, act in good faith for your benefit with due care, competence and diligence, following the document
• Act according to your expectations as actually known to the agent, and otherwise in your best interest
• Keep a record of all receipts, disbursements and significant actions, and give a copy when asked by you, a guardian or other fiduciary, your estate after death, adult protective services, the Long Term Care Ombudsman, the Office of Inspector General (DHS), the Office of State Guardian or public guardian, or a court
• Take your known estate plan into account and try to preserve it
• Do not commingle your funds with the agent's own, and do not borrow from you unless authorized
• Sign as '(Principal's Name) by (Agent's Name) as Agent'
• Stop acting once the agent learns the power of attorney or the agent's authority has ended

Agent pay

On the statutory form your agent is entitled to reimbursement of reasonable expenses, and also to reasonable compensation unless you strike out paragraph 5.

Law: 755 ILCS 45/3-3, paragraph 5 and its note

Asking a court to review an agent

Any interested person (you, the agent, a guardian, your spouse, parent, descendant or presumptive heir, a beneficiary, adult protective services, the Long Term Care Ombudsman, the State Guardian or a public guardian, a regulator, your caregiver or another person with sufficient interest in your welfare) can petition. If the court finds you lack capacity to control or revoke the agency, it may construe the power of attorney, review the agent's conduct and grant relief including damages, order a guardian to exercise or revoke the agency, or enter other orders. Cases are filed in the county where a guardian was appointed or, if none, where the agent or principal lives or you own real estate. Adult protective services, the State Guardian, a public guardian or the Ombudsman can ask a court to order an agent to produce records not given within 21 days.

Law: 755 ILCS 45/2-10; 755 ILCS 45/2-7(d)

Law: 755 ILCS 45/2-7, 2-9, 3-3(e)

When it ends and how to revoke it

It ends when

• Your death
• The end date or event stated in the document
• You revoke it
• A court order under the Act (for example, a guardian is ordered to exercise or revoke the agency)
• For a spouse who is the agent: a judgment of dissolution of marriage or legal separation entered after signing (the spouse is treated as having died for purposes of the agency)

Divorce ends a spouse's authority

Yes · Divorce rules in Illinois (Divorce Law Map)

How to revoke

While you have the capacity to do so, you can amend or revoke a power of attorney at any time and in any manner communicated to the agent or to any other person related to its subject matter. Signing a new power of attorney does not revoke an earlier one unless the new one says so; the statutory short form for property says it revokes all prior powers of attorney for property.

Telling others

The agent is not affected by a revocation or amendment until the agent has actual knowledge of it. A person who relies in good faith on a copy of the document is protected unless they have actual knowledge or reasonable notice that it was revoked, so tell the agent and every bank or business that has a copy.

Law: 755 ILCS 45/2-5, 2-6(b), 2-10(b); 755 ILCS 45/2-5, 2-7(a), 2-8(a), (c), (f)(9); 3-3 paragraph 1

Banks, other states and real estate

Banks and other businesses

A person who relies in good faith on a copy of a power of attorney is protected. Anyone who arbitrarily or without reasonable cause fails to follow an agent's direction is civilly liable for resulting damages. It is unreasonable to refuse a properly executed Illinois statutory short form for property only because it is not on the bank's own form, because time has passed, because of a gap between notarization and the agent's acceptance, because it is a copy accompanied by a properly executed Agent's Certification, or because it names an entity as agent. The Act lists reasonable reasons to refuse (for example, the agent will not provide a certification, a report to adult protective services, knowledge of the principal's death or revocation, a missing signature or invalid notarization). A copy is as good as the original for reliance purposes.

Law: 755 ILCS 45/2-8

Signed in another state

A power of attorney signed in another state or country is valid in Illinois if, when signed, it complied with the law of the place where it was signed, Illinois law, the law where you were domiciled, lived, did business or were a national, or the law where the agent was domiciled or did business.

Law: 755 ILCS 45/2-10.6(a)

Health care directive in Illinois

The document and its form

Document

Power of attorney for health care

Official form

Illinois Statutory Short Form Power of Attorney for Health CarePublished by Illinois Department of Public Health; Spanish version also postedVersion: No revision date printed on the form; PDF file last modified October 2021

You do not have to use it.

Living will

Living will declaration (Illinois Living Will Act)

The living will is a separate document.

A living will tells your doctor not to use death-delaying procedures if you have a terminal condition. It must be signed by you (or by another person at your direction) and witnessed by 2 people who are at least 18. The statutory form has each witness state that they are not entitled to any part of your estate and are not directly financially responsible for your medical care. A living will does not operate while a health care agent who can make decisions about life-sustaining procedures is available.

Living will

Law: 755 ILCS 45/4-10; 755 ILCS 35/3, 35/3.5; 755 ILCS 45/4-11

Signing rules

How to sign

Sign the form in front of one qualified adult witness and have the witness sign. The form does not need to be notarized.

Who signs

You sign. The signature and execution requirements may be met with written signatures or initials, or with electronic signatures or computer-generated signature codes.

Notary

Not required

Witnesses

1

Who cannot witness

One witness who is at least 18. None of these may witness: your attending physician, advanced practice registered nurse, physician assistant, dentist, podiatric physician, optometrist or psychologist, or a relative of one of them; an owner or operator (or a relative of an owner or operator) of a health care facility where you are a patient or resident (this extends to directors and executive officers of a corporate operator, but not to other employees such as non-owner chaplains, social workers or nurses); your parent, sibling or descendant, or the spouse of a parent, sibling or descendant, of you or of any agent or successor agent (by blood, marriage or adoption); or any agent or successor agent for health care.

Nursing facilities and special settings

No extra witness is required in a nursing facility, but the owner or operator of the facility where you live (and its directors and executive officers) may not witness.

Electronic signing

Electronic signatures are allowed, and an electronic health care power of attorney may be created, signed or revoked electronically through a secure system that meets the electronic-signature standards in the law. An agent may show an electronic copy of a signed form on a device, and doctors, EMS and providers may not refuse it for that reason.

Law: 755 ILCS 45/4-4.1, 4-10(a), (f)

Law: 755 ILCS 45/4-5.1, 4-10

Who can be your agent and what the agent can do

Who cannot be your agent

Your health care agent must be at least 18. Your attending physician or any other health care provider or professional who is giving you health care may not be your agent; a physician or other licensed person who is not treating you may serve.

Law: 755 ILCS 45/4-4(e-5), 4-5

When the agent starts

On the statutory form you choose when the agent may act: only when you cannot make decisions (the default if you check no box), the same but with immediate access to your medical records, or starting now. Your physician decides when you lack decisional capacity, as defined in the Health Care Surrogate Act.

Law: 755 ILCS 45/4-10(b), (d)

Decisions an agent cannot make

An agent may not delegate health care decisions to someone else. A health care agency may be limited by you in the form. A parent's power over a minor child's health care is not covered by the statutory form.

Law: 755 ILCS 45/4-10(c); 755 ILCS 45/4-10(a)

Revoking and conflicting documents

Revoking your agent

You may revoke a health care power of attorney at any time, whatever your mental or physical condition, by destroying or defacing it, by a signed and dated written revocation (paper or electronic), by telling a witness 18 or older who signs and dates a writing confirming it, or, for an electronic document, by deleting it. If you chose the 30-day delayed revocation option, the revocation takes effect 30 days after you communicate it. Amendments must be in writing, signed and dated.

Revoking your instructions

A living will may be revoked at any time by the same kinds of methods; the revocation takes effect when it is communicated to the attending physician.

Telling others

It is up to you or the agent to tell your health care provider about the document and any change. Anyone other than the agent who learns of a revocation must make reasonable efforts to tell the agent promptly.

Divorce ends a spouse's authority

Yes · Divorce rules in Illinois (Divorce Law Map)

Conflicting documents

The statutory health care form revokes all earlier powers of attorney for health care. If you have both a living will and a health care power of attorney, the living will does not operate while an authorized agent is available.

Law: 755 ILCS 45/4-10(b), 4-11; 755 ILCS 35/3.5

Law: 755 ILCS 45/4-6, 4-7(a), 2-6(b); 755 ILCS 35/5

If you have no directive

Who decides without a directive

If you lack decisional capacity and have no available health care agent, your attending physician identifies a surrogate in this order of priority. Surrogates at the same level should try to agree; if they disagree, the majority of those available decides, unless the minority starts a guardianship case. A surrogate may agree to forgo life-sustaining treatment only if you have a 'qualifying condition' (terminal condition, permanent unconsciousness, or an incurable or irreversible condition).

1. Guardian of the person
2. Spouse
3. Any adult son or daughter
4. Either parent
5. Any adult brother or sister
6. Any adult grandchild
7. A close friend
8. Guardian of the estate
9. A temporary custodian appointed by the juvenile court, if authorized

Law: 755 ILCS 40/25

Other states, registry and medical orders

Signed in another state

The Act's rule for powers of attorney signed in another state or country (valid if they complied with the law of the place signed, Illinois law, or the law of your or the agent's home) applies to powers of attorney generally.

Law: 755 ILCS 45/2-4(b), 2-10.6

POLST (medical orders)

IDPH Uniform Practitioner Orders for Life-Sustaining Treatment (POLST) form

Official page

Mental health directive

A declaration for mental health treatment lets you state wishes about psychotropic medicine, electroconvulsive therapy and admission to a mental health facility for up to 17 days, and name an attorney-in-fact. It must be signed by you and 2 competent adult witnesses; your attending physician or mental health service provider (or their relatives), a facility owner or operator (or relatives), and anyone related to you by blood, marriage or adoption may not witness. It can be invoked within 3 years after signing; if it is in effect when the 3 years end, it stays in effect until you are no longer incapable. IDPH posts the form.

Law: 755 ILCS 43/10, 43/20, 43/65

Law: 755 ILCS 40/65

Guardianship and conservatorship in Illinois

What guardianship or conservatorship is

What it is called

Guardian of the person, guardian of the estate (limited or plenary); temporary guardian; standby and short-term guardian

When a court may appoint one

The court may find an adult to be a 'person with a disability' only by clear and convincing evidence (for example, because of mental deterioration or physical incapacity the person is not fully able to manage their person or estate). Guardianship is used only as necessary and only to the extent required by the person's actual limitations. If the person lacks some but not all capacity, the court appoints a limited guardian; a plenary guardian only if the person is totally without capacity and limited guardianship would not protect them.

Law: 755 ILCS 5/11a-2, 11a-3, 11a-12

Kinds

• Limited guardian of the person and/or estate
• Plenary guardian of the person and/or estate
• Temporary guardian
• Standby guardian
• Short-term guardian

Law: 755 ILCS 5/11a-2 to 11a-26

Who can ask, which court and your own choice

Who may ask

A reputable person, the alleged person with a disability, or the court on its own motion.

Law: 755 ILCS 5/11a-3(a)

Court

Circuit court (probate) of the county where the adult lives; if the adult does not live in Illinois, a county where their property is located. In Cook County, the Probate Division's Adult Guardianship Estates section.

Law: 755 ILCS 5/11a-7

Choosing your own

While of sound mind you may designate in writing who should be your guardian; if it is signed and attested like a will it is presumed valid, and the court appoints that person if it serves your best interests. The statutory property form (paragraph 9) and health care form also let you nominate your agent as guardian.

Law: 755 ILCS 5/11a-6

Effect on a power of attorney

A guardian has no power over property or personal and health care matters covered by a power of attorney unless a court orders otherwise. If an agent seeks guardianship, the petition must list the powers needed that are not already in the power of attorney, and a guardianship petition may ask the court to suspend or revoke a power of attorney.

Law: 755 ILCS 45/2-10(g); 755 ILCS 5/11a-17(c)

Cost, fee waiver and forms

Fee waiver

Application for Waiver of Court Fees

Law: Illinois Supreme Court statewide civil fee waiver forms, Rule 298

Forms

• Petition for Appointment of Guardian for Disabled Person (Cook County, CCP0200)
• Summons for Appointment of Guardian for Disabled Person (Cook County, CCP0201)
• Order Appointing Plenary Guardian for Disabled Person (Cook County, CCP0204)
• Fee waiver forms (Illinois courts, civil)

Steps

Steps

Other options and where to report abuse

Supported decision-making

Supported Decision-Making Agreement Act

Effective February 27, 2022 (P.A. 102-614)

A supported decision-making agreement lets an adult choose a supporter to help them understand, make and communicate their own decisions, as a less restrictive option than guardianship. Under current law it is for adults with intellectual or developmental disabilities; an amendment effective January 1, 2027 opens it to other adults who are not under plenary guardianship.

You and your supporter sign and date the agreement in front of 2 or more witnesses who are at least 18. Your supporter cannot be a witness.

Source: Official text

Less restrictive options

• Power of attorney for property and for health care: Naming agents while you can still decide may avoid guardianship; a guardian cannot override an agent's authority without a court order.
• Health care surrogate: Without a document, a family member or close friend can make medical decisions as surrogate under the Health Care Surrogate Act without going to court.
• Supported decision-making agreement: An adult keeps the right to decide and chooses supporters to help.
• Limited guardianship: If a guardian is needed, the court must limit the guardian's powers to what the person actually cannot do.

Report abuse or exploitation

Illinois Department on Aging, Adult Protective Services · 1-866-800-1409

Call or text the Eldercare Locator to find your local adult protective services: 1-800-677-1116 · eldercare.acl.gov

Law: 755 ILCS 9/5, 9/10, 9/45

Good to know in Illinois

• Illinois requires both a witness and a notary for a power of attorney for property, and strict limits on who may witness.

  Law: 755 ILCS 45/3-3.6

• The health care power of attorney needs only one witness and no notary; you can choose a 30-day delay before a revocation takes effect.

  Law: 755 ILCS 45/4-5.1, 4-6(a-5)

• Guardians appointed by the court must complete a state training program and file a certificate within one year, with listed exemptions.

  Law: 755 ILCS 5/11a-12(e), as amended by P.A. 104-237, eff. 1-1-26

• A declaration for mental health treatment can be invoked only within 3 years of signing.

  Law: 755 ILCS 43/10

Changes in 2024–2026

P.A. 103-301 (eff. 1-1-24) recognizes electronic powers of attorney and advance directives, electronic notarization and witnessing by electronic presence. P.A. 103-994 (eff. 1-1-25) amended the reasons a third party may refuse a power of attorney. P.A. 104-237 (eff. 1-1-26) amended the guardian training requirement. P.A. 104-378 (eff. 1-1-26) amended when a living will operates. P.A. 104-820 (eff. 8-7-26) amended the Health Care Surrogate Act. Coming: P.A. 104-609 (eff. 1-1-27) removes two refusal reasons from 755 ILCS 45/2-8; P.A. 104-663 (eff. 1-1-27) broadens the Supported Decision-Making Agreement Act; P.A. 104-465 (eff. 7-1-27) renames the Office of State Guardian.

Law: 755 ILCS 6, Art. 11; 755 ILCS 45/2-8; 755 ILCS 5/11a-12; 755 ILCS 35/3.5, 9.5; 755 ILCS 40/25, 30

Questions about powers of attorney in Illinois