Certification by agent

A third party may now limit its risk by requesting that the agent named in a power of attorney provide either an affidavit or an Agent’s Certification and Acceptance of Authority (Certification and Acceptance) to ensure the power of attorney is effective. While the statute offers both options, it is likely preferable for agents to provide third parties with a Certification and Acceptance, for which there are clearly defined requirements.

The Certification and Acceptance is a simple form by which the agent certifies, under penalty of perjury (which is a Class 3 felony in Illinois), that the following are true:

• The power of attorney is a true copy.
• The principal had the capacity to execute the power of attorney.
• The principal is alive.
• The principal has not revoked the power of attorney.
• The agent’s powers as such have not been altered or terminated.
• The power of attorney remains in full force and effect.

Reasonable refusal

While the Illinois Power of Attorney Act provides broad protection to any third party that acts in good faith reliance on a power of attorney, the 2025 additions to the statute bring welcome clarity by outlining specific scenarios in which a third party may and may not reasonably refuse to accept a power of attorney.

A third party may not refuse to recognize an Illinois power of attorney in the following circumstances, which, in general, relate to the form and execution of a power of attorney:

• The power of attorney is not prepared on a form prescribed by the third party.
• Time has passed (a) since the power of attorney was executed or (b) between the date the principal signed the power of attorney and the date of acceptance by the agent.
• The power of attorney is missing an original signature, an original witness, or an original notarization but is accompanied by a properly executed Certification and Acceptance that bears the agent’s original signature.
• The power of attorney names an entity as the principal’s agent.

A third party may refuse to honor an Illinois power of attorney in the following circumstances:

• The agent refuses to provide, upon request, either an affidavit or a properly executed Certification and Acceptance.
• The agent refuses to provide a copy of the original document certified to be valid by an attorney, court order, or governmental entity.
• The third party, in good faith, refers the principal and the agent (or a person acting for or with the agent) to the local adult protective services unit.
• The third party has (a) actual knowledge or (b) a reasonable basis to believe that the agent (or a person acting for the agent) has been reported to adult protective services for alleged abuse, neglect, exploitation, or abandonment of the principal.
• The third party has actual knowledge of the principal’s death or a reasonable basis for believing the principal has died.
• If provided a nondurable power of attorney, the third party has actual knowledge that the principal is incapacitated or has a reasonable basis for believing that the principal is incapacitated.
• The third party has actual knowledge (or a reasonable basis for believing) that the principal was incapacitated at the time the power of attorney was executed
• The third party has actual knowledge (or a reasonable basis for believing) that (a) the power of attorney was procured through fraud, duress, or undue influence or (b) the agent is engaged in fraud or abuse of the principal.
• The third party has actual knowledge (or a reasonable basis for believing) that the power of attorney has been terminated or revoked.
• If a title insurance company, the third party refuses to underwrite title insurance for a gift of real property made pursuant to a statutory short form power of attorney that does not contain express instructions or purposes of the principal with respect to gifts.
• The principal’s attorney refuses to certify on request that the power of attorney is valid.
• The power of attorney is missing a signature, includes an incorrect signature, contains an invalid notarization, or is simply unacceptable.
• The third party (a) has filed a suspicious activity report as described by 31 U.S.C. § 5318(g) with respect to the principal or agent, (b) believes in good faith that the principal or agent has a prior criminal history involving financial crimes, or (c) has had a previous, unsatisfactory business relationship with the agent due to or resulting in material loss to the third party, financial mismanagement by the agent, or litigation between the third party and the agent alleging substantial damages.
• The third party has reasonable cause to suspect the abuse, abandonment, neglect, or financial exploitation of the principal, if the principal is an eligible adult under Illinois’s Adult Protective Services Act.

Why it matters

These changes to the Illinois Power of Attorney Act are intended to reduce legal and financial risk for third parties by giving them clear legal grounds to verify the validity of a power of attorney and avoid liability for honoring invalid documents. For agents, principals, and attorneys preparing powers of attorney, the new rules streamline the acceptance process, especially in high-stakes or time-sensitive situations.

Immediate next steps

Any attorneys who prepare powers of attorney for clients should be prepared to explain this new law to clients and have copies of a Certification and Acceptance form ready. It may be prudent to preemptively include such forms when preparing powers of attorney for clients, to reduce any delay during emergency situations.

Legal and compliance teams should also review and update internal procedures to ensure staff are trained on these new requirements and know when they can or must accept a power of attorney.