The Law Q&A | Power of attorney can help if you can't conduct financial affairs

The Law Q&A | Power of attorney can help if you can't conduct financial affairs

Suppose I need to conduct some financial affairs but am unable to do so myself because at the moment, I am in jail awaiting trial on charges of witness tampering (along with charges of mail fraud, wire fraud, money laundering and conspiracy against the United States).

How can I move my Swiss and Saudi slush funds around when I have no access to my cellphone or iPad?

Well, in Illinois one might avail themselves to a power of attorney for property (POA). This is a document that designates another person to act on your behalf for conducting those financial transactions that are recited in the document.

Illinois has a POA form that can be downloaded online. The form is considered valid anywhere in the state, so long as it is properly signed.

To be in effect, the person signing it (the principal) identifies in the POA another person to be the agent. The agent will be granted powers that are listed in the document to conduct the financial affairs for the principal.The POA will become effective when the principal signs it in front of two witnesses and a notary. The notary notarizes the signature of the principal and the signatures of the two witnesses who attest they witnessed the principal signing it.When the power of the agency kicks in depends on the terms of the POA. Perhaps it becomes operative on signature, or when the principal is determined by a treating doctor and the agent that the principal is incapable by illness, injury or other disability, not competent to make financial decisions.

The POA likewise may have conditions for when it terminates. By law, it will terminate upon death of the principal. All property affairs of the deceased thereafter can only be handled by an administrator of the decedent which is governed by Illinois probate law.

What if my agent is also in jail on conspiracy charges and so cannot act as my agent? Successive agents should be named in the POA in the event the first named agent ceases to act as agent.

Co-agents cannot be named. Agents must be successive, so make up your mind if you want Mom or Dad as the first agent and the other as the first successor.

What happens if the agent double-crosses you and performs a transaction that benefits only the agent? Illinois law frowns on such self-dealing, and such act is presumed to be fraudulent and thus not enforceable against the principal. That presumption can be rebutted if the agent can show the act was specifically allowed under the POA or was otherwise authorized by the principal.

So, if I gave my lawyer a POA for handling my Swiss account and that guy moved all my funds into his own account in Kuala Lumpur, he will be liable to me if I didn't authorize that.

On the other hand, I may have given him broad powers in the POA to move such funds to his own account. Perhaps I fully expected him to do so under the expansive language of my POA.

Because, you know, it's important to stay one step ahead of the government until I get my pardon.

Brett Kepley is a lawyer with Land of Lincoln Legal Assistance Foundation. You can send your questions to The Law Q&A, 302 N. First St., Champaign, IL 61820. Questions may be edited for space.