Will we need to get a new power of attorney document in 2011?

1 answer | Last updated: Oct 12, 2016
A fellow caregiver asked...

We live in Illinois. We are attempting to get Power of Attorney documents for my mother-in-law who has Alzheimer's. She is capable of signing the document now and wants to do it. An attorney told us that laws concerning Power of Attorney will change in 2011 and we will have to go through the paperwork again after the new year. How can that be, once power of attorney is given isn't that until the person who gave it wants to change it? Also what if the person with dementia is unable to give power of attorney in the future? What would happen if they signed a power of attorney document in 2010, does it become void in 2011?

Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

It sounds as if the legal advice you got was only partially right.

It's true that the Illinois law concerning powers of attorney was amended, with that amendment to take effect on July 1, 2011"”and all such documents completed from that date on must comply with the new law.

However, the lawmakers wisely wrote in a provision in the new law that states: "A power of attorney executed in this State before the effective date of this amendatory Act of the 96th General Assembly is valid and enforceable in this State if its creation complied with the law of this State as it existed at the time of execution."

That's legalese that means if your mother-in-law is mentally competent to sign a power of attorney now, she can do so"”and that document will remain effective. It will not become void when the new law takes effect.

A person who lacks legal capacity cannot complete a power of attorney, so it sounds as if it may be a good idea to complete one now"”for the peace of mind of all concerned.

For your information, the new law will create some good changes"”most of them making Illinois' power of attorney more powerful and easier to understand.

For example, under the new law, agents will be required to act "in good faith using due care, competence and diligence" instead of with "due care" as the current law provides.

The person who makes the power of attorney and any agents he or she names will also be required to get a more clear explanation of their rights and responsibilities under a power of attorney and the Illinois Power of Attorney Act.

And the outdated term "irreversible coma" will be replaced with the terms used in many other states: "terminal condition," "permanent unconsciousness," and "incurable or irreversible condition."

Your mother-in-law can complete a new power of attorney after the new law takes effect if she remains able to do so, but it is not necessary--and will not likely change the wishes she expresses.