Your father's lawyer was correct. Under Illinois' Durable Power of Attorney Act, which was revised most recently on July 1, 2011, there can only be one agent under a Durable Power of Attorney at one time. Agents are named in succession in case the previously named agent is unwilling or unable to act as agent. If you think about it, the rule really makes sense. In an emergency situation, the Doctor needs a decision on how to proceed; the Doctor does not want a group of people coming up and given a multitude of conflicting answers. However, there are several alternative provisions that can be added to a Durable Power of Attorney to ease your father's concerns. First the new act provides that attached to the Power of Attorney is a Notice to Agent which explains the Agent's duties and advises of prohibitive acts. The liability of an agent under a Durable Power of Attorney since the agent is acting in a fiduciary capacity is very high for any breach. The new Act elevates the agent’s standard of care, requires more oversight of the agent’s actions, and expands the remedies against an agent who abuses his or her fiduciary responsibilities. The new Act also requires the agent to maintain an accounting of receipts and disbursements and significant actions at all times, not just when the principal is incapacitated. However, to ease your father’s concerns additional requirements and rights can be added to the Durable Power of Attorney, including the requirement that the first agent disclose all actions to all successor agents, and provide all successor agents with financial accountings no less than quarterly. A clause can also be added requiring the agent to discuss all major decisions with all successor agents prior to making a decision, however that type of provision might prove difficult to enforce. Good luck.
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