Many attorneys continuously strive for a better work-life balance, no matter how
much of an uphill battle it is. Typically, e are individuals with a strong work
ethic, plugging through three years of the Socratic method to earn the privilege
to practice law. Once practicing, we have an ethical duty to our clients to zealously represent
them. Further, we have our own individual motives, some altruistic and financial, or to
achieve Super Lawyer status. While these duties and motives are enough to make it difficult
to achieve a desired work-life balance, one must also consider that everywhere we go, people
ask us questions. Society, particularly our family members, believes that once you are a
lawyer you can answer any legal question in any setting. Whether it is a divorce question at
a cocktail party, one about Uncle Joe’s real estate closing, or an estate planning question at
a child’s sporting event, questions are inevitable.
One of the common inquiries made by family and
friends of practicing attorneys is the request to draw up
a quick and “simple” Power of Attorney for Property.
Some attorneys might think, “sure, it’s a statutory
form,” and print one out for the individual to execute.
However, while it may seem easy enough to do, attorneys
must be aware of the many pitfalls involved in the
drafting of such a “simple” document.
We are all becoming acutely aware of our aging
population. Each day, 8,000 individuals attain the age
of 65, with this high rate continuing for the next fifteen
years.1 Often, panicked and desperate family members
are left scrambling to care for their aging loved ones
when essential documents, such as a Power of Attorney
for Property, are not put into place before a crisis situation arises. If you haven’t had this happen to you
yet, it will become increasingly common to receive
a request for a Power of Attorney for Susie’s mom or
Johnny’s grandma. These family members will call you
urgently needing a Power of Attorney for Property for
their loved one. They may be a client with whom you
have a longstanding relationship and you know the person
to be a “good” son, or a personal friend, or even a
great referral source. Wanting to help that individual,
you may be tempted to go ahead and draft a “simple”
Power of Attorney for Property. However, caution must
be taken before jumping into action.
Pitfall I: Not Reading the Statute.
The Illinois Power of Attorney Act2 provides a
Statutory Short Form Power of Attorney for Property. This Act also stipulates the rules for
the Power of Attorney for Property,
and provides the scope and authority
the agent has in making financial
decisions for the principal.3 The statute
dictates the duties an agent has
to the principal, specifies options for
the duration of the agency, explains
its applicability in certain situations,
and much more.4
The Act itself is far more inclusive
than a simple Power of Attorney
form may lead one to believe. If a
quick Google search is completed,
multiple sample forms pop up in the
results, each one of them being different
than the next. Several will appear
to be all-inclusive, while others may seem to possess
only the bare minimum requirements. Regardless of
the form, the key point to be made is that the attorney
who is drafting a Power of Attorney for Property must
know not only what the form says and means, but also
what the statute conveys and how the two interplay. The
statute does not just lay out the Power of Attorney for
Property Statutory Short Form; it lays out much more
than even the most comprehensive form includes within
its pages, and the drafting attorney needs to be aware of
One example of the interplay that can occur is if
a form neglects to elaborate on who may witness the
principal signing the Power of Attorney for Property. If
a form is sent out to Johnny’s grandma to sign without
direction as to who may serve as a witness, Johnny may
just round up a family member to witness grandma appointing
him as agent to help her maintain her bank
accounts. However, the statute lists limitations on who
may witness Powers of Attorney for Property. One of
the restrictions on witnesses is that a “parent, sibling,
or descendant, or the spouse of a parent, sibling, or descendant,
of either the principal or any agent or successor
agent, regardless of whether the relationship is
by blood, marriage, or adoption,” may not serve as a
witness.5 Other disallowed witnesses include agents,
successor agents, attending physicians or a relative of
the physician, and owners, operators, or relatives of an owner or operator of a health
care facility in which the principal
is a patient or resident.6
This gaffe could have been easily
avoided if the attorney had examined
the statute and communicated
this issue to Johnny.
Using a statutory Power
of Attorney for Property form
without completely reading and
understanding the full meaning
of the statute and how it may interplay
with an individual’s other
legal documents is a huge disservice
to the signing principal.
Doing so can lead to more problems
and unanticipated issues.
Pitfall II: Oversimplification.
Another trap for the unwary attorney is oversimplifying
the Power of Attorney for Property and its application
to certain circumstances. While the Statutory
Short Form lays out specific powers which most Power
of Attorney for Property forms mirror, the statute allows
for the inclusion of powers beyond the scope of those
included in the Statutory Short Form.7 If an authority
is not specifically granted in the Power of Attorney for
Property form, the agent will not have that ability to
act. Therefore, it is important that great thought and
client discussion go into this document. If a situation
arises in the future that requires the excluded powers,
an agent will not only lack the authority to perform on
the specific action, but a guardianship, which can be
both costly and unnecessarily intrusive, may then be required.
The proceeding paragraphs highlight some current
powers that are often overlooked and excluded.
In a society that has an elderly population whose
numbers continue to grow, and that has increased its
efforts helping people with disabilities, these are two
areas which require constant attention. Estate planners
and elder law attorneys have been increasingly adding
special provisions that incorporate long-term care planning
for disabled or elderly individuals. For example,
if Susie’s mom became disabled as the years progressed
and could qualify for Medicaid special needs planning,
it would be to her detriment if her Power of Attorney for Property did not include a provision that would authorize
Susie to be able to move her mom’s assets around
in order to take advantage of Medicaid benefits. Despite
the importance of such provisions, given the strategies
involved in long-term care planning, these intricate
provisions should not be added to just everyone’s documents
without a complete discussion of the issues with
Another hot topic item in the estate planning community
is that of Digital Assets.
Digital Assets include social
media accounts, such as Facebook,
LinkedIn, and Twitter, as well as
e-mails, blogs, digital photos, and
online banking accounts and records.
There is regular coverage in
the media about loved ones running
into issues gaining access to
various Digital Assets when a family
member passes, due to them
not having the right to access the
accounts.8 However, this issue
also arises if a loved one becomes
incapacitated. Currently, Illinois
has no Digital Asset legislation in
place. Having a properly drafted
Power of Attorney for Property
that includes a Digital Asset provision
may make dealing with a
loved one’s Digital Assets possible
in an otherwise unworkable
situation. If Johnny did not have
physical access to grandma’s bank
account and could only log in via a website, banks will
often consider this outside the scope of a basic Power
of Attorney for Property, and may deny Johnny access.
This, and many other Digital Asset headaches, may be
avoided with a properly inserted provision.
Business succession planning is a final example of
a specialized power an agent may need if the principal
becomes incapacitated unexpectedly and the proper
corporate documents are not put in place. Adding in
a business succession planning provision can grant the
agent powers to vote stock, name successors, or have
corporate documents drafted up when appropriate.
Regular, run-of-the-mill forms, including the
Statutory Short Form, do not include special needs,
Digital Assets, business succession, and other specialized
provisions. The above examples are the tip of the
iceberg on various powers that can be added to the statutory
Power of Attorney for Property form. Personal
knowledge of the principal and familiarity with the statute
and its ability to grant additional powers in addition
to those listed is imperative to properly drafting a Power
of Attorney for Property form.
Pitfall III: Ethical and Malpractice
As an attorney you are no doubt
wondering about the attorney in the
examples merely sending a Power
of Attorney for Property form to
Johnny and his grandma or Susie and
her mom, and whether there would
be ethical and malpractice ramifications
for these actions. Coupled with
the fact the attorney may not fully
understand the statute and might
send out an oversimplified form,
the attorney may have possible ethical
and malpractice repercussions
when drafting a Power of Attorney
for Property for the principal. In
my short tenure practicing, I have
already had to deal with this type of
situation and will no doubt continue
to find myself in these situations.
In my case, I had to tell a longtime
client of our firm that I was not comfortable sending
out Power of Attorney forms for his father without
meeting his father in person. The son was a current client
of the firm, while his father was a former client. The father
had been out of the country for an extended period
of time and was now coming back to live in an assisted
living facility. The only correspondence I had was with
the son, in which he expressed he wanted me to draft
up a quick set of documents for his father naming him
as the agent so he could manage his father’s affairs. This
common situation could end up an ethical nightmare,
which can be difficult to explain to a less than pleased
client. I told him I wanted to meet with his father in
person to check for capacity, and confirm his acknowledgement
of the terms of the document as I drafted it.
In addition, I wanted to ensure the forms were tailored to any special needs the father may have, partially motivated
by the fact I knew he was moving into an assisted
living facility. An additional issue that presented itself
was who I represented during this whole ordeal: the son
or the father? The Illinois Rules of Professional Conduct
outline various duties to former clients, prospective clients,
and what to do if there is a conflict of interest.9
While no red flags were raised by the son requesting
the forms to be drafted, an attorney may easily forget
that engaging in this practice could come back and result
in future issues. Both the attorney and Johnny could
be held accountable if Johnny’s grandma lacked capacity,
or didn’t know to the full extent what was signed.
Additionally, even if the grandma did not meet with
the attorney or pay for the services, the attorney should
realize the grandma may very well be considered a client
now, with all of the Rules of Professional Conduct
applying. Even in emergency circumstances where time is of the essence, the attorney should be present at the
execution of a properly drafted document to avoid this
Any attorney drafting a Power of Attorney for
Property, even the established estate planning attorney,
should be aware of the significance of this document
and how it can affect the client’s life. It is easy to fall
into one of the many traps stated above. While routine
wills and trusts deal with what happens after a client is
deceased, the Power of Attorney for Property personally
affects the client while they are alive, and stipulates
the outcomes in countless situations. In order to ensure
the Power of Attorney for Property fulfills a client’s intent,
meeting with the client to fully understand current
and future needs is crucial to the process, and should
be conducted by an attorney who is competent in the
Illinois Power of Attorney Act.
1 Baby Boomers Turning 65, AARP, http://www.aarp.org/personalgrowth/transitions/boomers_65.
2 755 ILCS 45.
3 755 ILCS 45/3.
4 See generally 755 ILCS 45/2-7, 2-5, and 2-4.
5 755 ILCS 45/3-3.6(a)(3).
6 755 ILCS 45/3-3.6.
7 755 ILCS 45/2-4.
9 See generally, ILL. RULES OF PROF’L CONDUCT, 1.8, 1.9, and 1.18 (2010).
Carleton W. Yoder
is an associate
a t t o rney with
Huck Bouma P.C.
in Wheaton, IL,
practice in the areas
of trusts and estates,
business succession planning, estate
and gift strategies, and wealth transfer
through estate and gift planning.
Carleton attended Pepperdine University
School of Law where he received his Juris
Doctor, and received his Master of Laws
in Taxation at Chicago-Kent College of Law.