LCBA 2022 Annual Meeting

V. GUARDIANSHIPS & POWERS OF ATTORNEY

Finally, the amendments to Section 11a must also be read in pairing with amendments made to the Illinois Power of Attorney Act.11 It is not uncommon for these two statutes to meet in litigation over the construction of a power of attorney or removal of an agent acting under a power of attorney. The new amendments to both acts clarify the procedure for petitioning for guardianship where an existing power of attorney is in place.

First, an addition to Section 11a-812 of the Probate Act directs that a petitioner seeking the revocation or construction of a power of attorney, or review of the agent’s conduct, must do so in conformity with the already-existing Sections 11a-17 and 11a-18 of the Illinois Power of Attorney Act. This addition seems to be not so much a substantive change as a procedural roadmap for litigants balancing a petition for guardianship with an existing power of attorney.

A second change was made to Section 2-10 of the Power of Attorney Act. This amendment is a bit more substantive than the roadmap provided in Section 11a-8. Specifically, the amended Section 2-10(g) now states that where an existing agent under a power of attorney seeks guardianship of the principal, the agent must specifically

11 755 ILCS 45/1 et seq. 11 755 ILCS 5/11a-8. 12 755 ILCS 45/2-10(g). identify those powers not already included in the power of attorney for which appointment of a guardian is needed. As an example, this might occur when the agent wants to execute estate planning or gifting documents for the principal but the power of attorney does not expressly permit such actions. In that case, the agent could seek appointment as a limited guardian of the estate for the express and limited purpose of executing proposed estate plan documents on behalf of the principal. Once the documents are executed, the limited guardianship can be closed. Under the newly amended Section 2-10, the agent/petitioner must be specific in his petition as to what authority he requires that the existing power of attorney does not already provide.

The final sentence of Section 2-10(g), as amended, is most interesting. It provides, “The petition for temporary, limited, or plenary guardianship of the principal under the Probate Act of 1975 may include a prayer for relief to suspend a power of attorney or to revoke a power of attorney in accordance with subsection (b).” This addition seemingly indicates that filing separate petitions to revoke, suspend, or invalidate a power of attorney, as has traditionally been the practice, may not be necessary. Instead, it may be possible to seek all relief in one filing. A result that would simplify current procedure.

These and other minor amendments to Section 11a of the Probate Act became effective as of the start of the year. Probate and guardianship attorneys would be well advised to review them and update their own practices as needed.

LCBA 2022 Annual Meeting (Virtual) Tuesday, March 22, 2022 • 12 Pm

The Lake County Bar Association’s 2022 Annual Meeting will be held remotely via Zoom on Tuesday, March 22, 2022, starting at 12:00 p.m. Join the Lake County Bar Association Nominating Committee as they announce the slate of candidates for purposes of electing the LCBA 2022-2023 Board of Directors and Officers and approval of the Lake County Bar Association’s proposed revisions to the LCBA Bylaws. A vote of the membership for the LCBA Bylaws and accepting the below slate will occur at the LCBA Annual Meeting on March 22, 2022, Virtually via Zoom at 12:00 p.m.: 2nd Vice President Daniel Hodgkinson, McCollum Hodgkinson, P.C. Treasurer Kevin Berrill, Lake County State’s Attorney’s Office. Secretary Jeffrey Berman, Anderson + Wanca Directors 3-Year Term Jeremy Harter, Harter & Schottland, P.C. Judy Maldonado, Law Office of Judy K Maldonado Lake County Bar Association Proposed Revised LCBA By-laws You must sign in and register to receive the zoom information