Big Changes to Illinois Powers of Attorney – What It Means for Estate Planning

Landmark Case: In re the Estate of Mark A. Coffman

The landmark case of In re the Estate of Mark A. Coffman from the Illinois Supreme Court has significant implications for estate planning. The court decided that agents are considered fiduciaries when named in Powers of Attorney (POAs). Previously, many believed that agents were only fiduciaries once they took affirmative action under a POA.

In this case, a wife was named as an agent in her late husband’s estate plan in 2001. He later changed his will to favor her in 2018 and passed away shortly after. His siblings contested the will, alleging undue influence because she was named as an agent in his POAs from 2001, despite never acting on his behalf before the second will was signed. The Supreme Court found that she was a fiduciary just by being named as an agent under the POAs.

Key Takeaways from the Decision

• Consider Your Agent Carefully: Naming someone as an agent under your POAs can make them a target for a will contest if they receive more under your estate plan or large gifts during your lifetime compared to other heirs.
• Add Specific Language to POAs: Include language stating that the agent is not your agent until they affirmatively sign an acceptance to act. This can help ensure they are not considered a fiduciary until necessary, such as during incapacity.

Changes to the Illinois Power of Attorney Act

Starting January 1, 2025, amendments to the Illinois Power of Attorney Act will take effect. These changes aim to make it easier to enforce POAs, but they may also create practical challenges.

• Agent and Attorney Certifications: Institutions may now require an agent’s certification accepting their authority and an attorney’s certification that the document is valid. This could complicate the recognition of POAs, especially those signed before the law changes.
• Recommendations: We recommend drafting new POAs this year with an attorney certification prepared simultaneously to avoid future issues.

Potential Issues with the Amendments

• Certification Challenges: If an agent seeks certification years after the POA was prepared, it may be difficult for the drafting attorney to confirm its validity, especially if the principal is incapacitated or the attorney is no longer available.
• Institutional Requirements: Financial institutions may routinely require attorney certifications, potentially making it easier for them to decline POAs. This could force families to go through the guardianship process if a new POA cannot be signed.

Learn more about the differences between POAs and guardianship in this article..

At Long Law Group, our dedicated attorneys focus on Estate Planning and Estate Administration, providing you with the necessary support to secure Power of Attorney or establish Guardianship while actively walking you through each step to protect the welfare of your loved ones.

Contact us at contact@jlonglaw.com or 312-344-3644 to discuss your particular case