Powers of Attorney for Property — What You Need to Know

Popular culture has thrown the phrase “power of attorney” around to comedic effect in the past few decades and, in its pursuit of humor, has given some of those among the general public who hear this phrase the impression that someone who is granted this legalese-styled authority can routinely perform tasks anywhere from representing another person in a court of law all the way to selling away another person’s organs, both at their own discretion and with legal impunity.

But, of course, even acknowledging the gulf between the joke and the actuality, misconceptions still abound. When it comes to Powers of Attorney in Illinois, what parts are fact and what parts are fiction?

The average person is only likely to encounter a power of attorney in property law, specifically real estate transfers or estate planning, rather than in an everyday or random capacity. And, even then, the abilities and responsibilities granted are rather specific, limited, and revocable.

More often than not, those who have been given power of attorney in Illinois are dealing with a specific Power of Attorney granting them the limited and temporary authority to sign on behalf of an absent party only in matters pertaining to a definite transfer (such as a sale or purchase) of real estate. In this case, the specific Power of Attorney will delineate the sorts of real estate documents that fall under this authority as well as give a clear description of the real estate in question, so as to leave no illusions that the Power of Attorney applies to anything else. Even if a similar or identical property transfer were to occur in the future, an entirely new specific Power of Attorney would need to be drawn up, signed, witnessed, dated, and notarized. The specific Power of Attorney does not give its holder more rights than what is explicitly stated in the text of the Power of Attorney. The agent is there to confirm that the named signer has agreed to the set terms or to object if one or more of the terms had been misrepresented – their role is as a conduit for the signatory’s intent, not as an active participant in the negotiation.

What is a bit more involved, however, is the other type of Power of Attorney used in real estate transactions, which is a Power of Attorney prescribed by state statute in Illinois. While a specific Power of Attorney is commonly used in routine real estate transactions, a statutory Power of Attorney belongs in the realm of estate planning. Unlike the specific POA, the statutory POA grants broader authority to whomever you choose as your legal agent and the reach of their authority extends beyond real estate transactions to which the principal signer has expressed consent. Moreover, unless you specify an end date, the agent can retain authority indefinitely. That all said, before you get the idea that this form is an ironclad carte blanche for the agent in question, the statutory Power of Attorney does include several options for the principal signer to limit the agent’s authority ahead of time by indicating specific categories of powers that fall outside of the agent’s purview, such as setting a specific date at which the statutory Power of Attorney expires, naming an altogether different successor agent in the case that the primary agent is deemed incompetent, and limiting the rights of the agent as to certain types of transactions. Additionally, the statutory Power of Attorney can be revoked by the principal signer at any time. A court can also rescind the statutory Power of Attorney if it deems that the named agent acted improperly.

It’s understandable for the mere idea of a Power of Attorney can be overwhelming. With overblown, contradictory half-truths being shared through the grapevine of popular media and public perception, it can be difficult to get a proper handle on what a Power of Attorney actually means.  By now, you should have an improved grasp of the intricacies involved. Rest assured, your attorney can guide you to a full understanding of the rights, privileges, and limitations inherent in your existing or potential Power of Attorney. Feel free to let your attorney’s knowledge and expertise empower YOU!