Sen. Ira I. Silverstein

Filed: 2/28/2006

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 2676

2     AMENDMENT NO. ______. Amend Senate Bill 2676, AS AMENDED,
3 by replacing everything after the enacting clause with the
4 following:
 
5     "Section 5. The Illinois Power of Attorney Act is amended
6 by changing Sections 2-9 and 3-4 as follows:
 
7     (755 ILCS 45/2-9)  (from Ch. 110 1/2, par. 802-9)
8     Sec. 2-9. Preservation of estate plan and trusts. In
9 exercising powers granted under the agency, including powers of
10 amendment or revocation and powers to expend or withdraw
11 property passing by trust, contract or beneficiary designation
12 at the principal's death (such as, without limitation,
13 specifically bequeathed property, joint accounts, life
14 insurance, trusts and retirement plans), the agent shall take
15 the principal's estate plan into account insofar as it is known
16 to the agent and shall attempt to preserve the plan, but the
17 agent shall not be liable to any plan beneficiary under this
18 Section unless the agent acts in bad faith. An agent may not
19 revoke or amend a trust revocable or amendable by the principal
20 or require the trustee of any trust for the benefit of the
21 principal to pay income or principal to the agent without
22 specific authority and specific reference to the trust in the
23 agency. The agent shall have access to and the right to copy
24 (but not to hold) the principal's will, trusts and other

 

 

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1 personal papers and records to the extent the agent deems
2 relevant for purposes of this Section. This Section shall not
3 apply to any Totten Trust, Payable on Death Account, or
4 comparable trust account arrangement where the terms of such
5 trust are contained entirely on the financial institution's
6 signature card insofar as an agent acting under a power of
7 attorney executed in accordance with this Act shall be
8 permitted to withdraw income or principal from such account if
9 the power of attorney grants the agent authority to conduct
10 financial institution transactions on the principal's behalf
11 and the agent's authority to access such account is not
12 expressly limited or withheld in the agency.
13 (Source: P.A. 85-701.)
 
14     (755 ILCS 45/3-4)  (from Ch. 110 1/2, par. 803-4)
15     Sec. 3-4. Explanation of powers granted in the statutory
16 short form power of attorney for property. This Section defines
17 each category of powers listed in the statutory short form
18 power of attorney for property and the effect of granting
19 powers to an agent. When the title of any of the following
20 categories is retained (not struck out) in a statutory property
21 power form, the effect will be to grant the agent all of the
22 principal's rights, powers and discretions with respect to the
23 types of property and transactions covered by the retained
24 category, subject to any limitations on the granted powers that
25 appear on the face of the form. The agent will have authority
26 to exercise each granted power for and in the name of the
27 principal with respect to all of the principal's interests in
28 every type of property or transaction covered by the granted
29 power at the time of exercise, whether the principal's
30 interests are direct or indirect, whole or fractional, legal,
31 equitable or contractual, as a joint tenant or tenant in common
32 or held in any other form; but the agent will not have power
33 under any of the statutory categories (a) through (o) to make

 

 

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1 gifts of the principal's property, to exercise powers to
2 appoint to others or to change any beneficiary whom the
3 principal has designated to take the principal's interests at
4 death under any will, trust, joint tenancy, beneficiary form or
5 contractual arrangement. The agent will be under no duty to
6 exercise granted powers or to assume control of or
7 responsibility for the principal's property or affairs; but
8 when granted powers are exercised, the agent will be required
9 to use due care to act for the benefit of the principal in
10 accordance with the terms of the statutory property power and
11 will be liable for negligent exercise. The agent may act in
12 person or through others reasonably employed by the agent for
13 that purpose and will have authority to sign and deliver all
14 instruments, negotiate and enter into all agreements and do all
15 other acts reasonably necessary to implement the exercise of
16 the powers granted to the agent.
17     (a) Real estate transactions. The agent is authorized to:
18 buy, sell, exchange, rent and lease real estate (which term
19 includes, without limitation, real estate subject to a land
20 trust and all beneficial interests in and powers of direction
21 under any land trust); collect all rent, sale proceeds and
22 earnings from real estate; convey, assign and accept title to
23 real estate; grant easements, create conditions and release
24 rights of homestead with respect to real estate; create land
25 trusts and exercise all powers under land trusts; hold,
26 possess, maintain, repair, improve, subdivide, manage, operate
27 and insure real estate; pay, contest, protest and compromise
28 real estate taxes and assessments; and, in general, exercise
29 all powers with respect to real estate which the principal
30 could if present and under no disability.
31     (b) Financial institution transactions. The agent is
32 authorized to: open, close, continue and control all accounts
33 and deposits in any type of financial institution (which term
34 includes, without limitation, banks, trust companies, savings

 

 

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1 and building and loan associations, credit unions and brokerage
2 firms); deposit in and withdraw from and write checks on any
3 financial institution account or deposit; and, in general,
4 exercise all powers with respect to financial institution
5 transactions which the principal could if present and under no
6 disability. This authorization shall also apply to any Totten
7 Trust, Payable on Death Account, or comparable trust account
8 arrangement where the terms of such trust are contained
9 entirely on the financial institution's signature card,
10 insofar as an agent shall be permitted to withdraw income or
11 principal from such account, unless this authorization is
12 expressly limited or withheld under paragraph 2 of the form
13 prescribed under Section 3-3. This authorization shall not
14 apply to accounts titled in the name of any trust subject to
15 the provisions of the Trusts and Trustees Act, for which
16 specific reference to the trust and a specific grant of
17 authority to the agent to withdraw income or principal from
18 such trust is required pursuant to Section 2-9 of the Illinois
19 Power of Attorney Act and subsection (n) of this Section.
20     (c) Stock and bond transactions. The agent is authorized
21 to: buy and sell all types of securities (which term includes,
22 without limitation, stocks, bonds, mutual funds and all other
23 types of investment securities and financial instruments);
24 collect, hold and safekeep all dividends, interest, earnings,
25 proceeds of sale, distributions, shares, certificates and
26 other evidences of ownership paid or distributed with respect
27 to securities; exercise all voting rights with respect to
28 securities in person or by proxy, enter into voting trusts and
29 consent to limitations on the right to vote; and, in general,
30 exercise all powers with respect to securities which the
31 principal could if present and under no disability.
32     (d) Tangible personal property transactions. The agent is
33 authorized to: buy and sell, lease, exchange, collect, possess
34 and take title to all tangible personal property; move, store,

 

 

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1 ship, restore, maintain, repair, improve, manage, preserve,
2 insure and safekeep tangible personal property; and, in
3 general, exercise all powers with respect to tangible personal
4 property which the principal could if present and under no
5 disability.
6     (e) Safe deposit box transactions. The agent is authorized
7 to: open, continue and have access to all safe deposit boxes;
8 sign, renew, release or terminate any safe deposit contract;
9 drill or surrender any safe deposit box; and, in general,
10 exercise all powers with respect to safe deposit matters which
11 the principal could if present and under no disability.
12     (f) Insurance and annuity transactions. The agent is
13 authorized to: procure, acquire, continue, renew, terminate or
14 otherwise deal with any type of insurance or annuity contract
15 (which terms include, without limitation, life, accident,
16 health, disability, automobile casualty, property or liability
17 insurance); pay premiums or assessments on or surrender and
18 collect all distributions, proceeds or benefits payable under
19 any insurance or annuity contract; and, in general, exercise
20 all powers with respect to insurance and annuity contracts
21 which the principal could if present and under no disability.
22     (g) Retirement plan transactions. The agent is authorized
23 to: contribute to, withdraw from and deposit funds in any type
24 of retirement plan (which term includes, without limitation,
25 any tax qualified or nonqualified pension, profit sharing,
26 stock bonus, employee savings and other retirement plan,
27 individual retirement account, deferred compensation plan and
28 any other type of employee benefit plan); select and change
29 payment options for the principal under any retirement plan;
30 make rollover contributions from any retirement plan to other
31 retirement plans or individual retirement accounts; exercise
32 all investment powers available under any type of self-directed
33 retirement plan; and, in general, exercise all powers with
34 respect to retirement plans and retirement plan account

 

 

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1 balances which the principal could if present and under no
2 disability.
3     (h) Social Security, unemployment and military service
4 benefits. The agent is authorized to: prepare, sign and file
5 any claim or application for Social Security, unemployment or
6 military service benefits; sue for, settle or abandon any
7 claims to any benefit or assistance under any federal, state,
8 local or foreign statute or regulation; control, deposit to any
9 account, collect, receipt for, and take title to and hold all
10 benefits under any Social Security, unemployment, military
11 service or other state, federal, local or foreign statute or
12 regulation; and, in general, exercise all powers with respect
13 to Social Security, unemployment, military service and
14 governmental benefits which the principal could if present and
15 under no disability.
16     (i) Tax matters. The agent is authorized to: sign, verify
17 and file all the principal's federal, state and local income,
18 gift, estate, property and other tax returns, including joint
19 returns and declarations of estimated tax; pay all taxes;
20 claim, sue for and receive all tax refunds; examine and copy
21 all the principal's tax returns and records; represent the
22 principal before any federal, state or local revenue agency or
23 taxing body and sign and deliver all tax powers of attorney on
24 behalf of the principal that may be necessary for such
25 purposes; waive rights and sign all documents on behalf of the
26 principal as required to settle, pay and determine all tax
27 liabilities; and, in general, exercise all powers with respect
28 to tax matters which the principal could if present and under
29 no disability.
30     (j) Claims and litigation. The agent is authorized to:
31 institute, prosecute, defend, abandon, compromise, arbitrate,
32 settle and dispose of any claim in favor of or against the
33 principal or any property interests of the principal; collect
34 and receipt for any claim or settlement proceeds and waive or

 

 

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1 release all rights of the principal; employ attorneys and
2 others and enter into contingency agreements and other
3 contracts as necessary in connection with litigation; and, in
4 general, exercise all powers with respect to claims and
5 litigation which the principal could if present and under no
6 disability.
7     (k) Commodity and option transactions. The agent is
8 authorized to: buy, sell, exchange, assign, convey, settle and
9 exercise commodities futures contracts and call and put options
10 on stocks and stock indices traded on a regulated options
11 exchange and collect and receipt for all proceeds of any such
12 transactions; establish or continue option accounts for the
13 principal with any securities or futures broker; and, in
14 general, exercise all powers with respect to commodities and
15 options which the principal could if present and under no
16 disability.
17     (1) Business operations. The agent is authorized to:
18 organize or continue and conduct any business (which term
19 includes, without limitation, any farming, manufacturing,
20 service, mining, retailing or other type of business operation)
21 in any form, whether as a proprietorship, joint venture,
22 partnership, corporation, trust or other legal entity;
23 operate, buy, sell, expand, contract, terminate or liquidate
24 any business; direct, control, supervise, manage or
25 participate in the operation of any business and engage,
26 compensate and discharge business managers, employees, agents,
27 attorneys, accountants and consultants; and, in general,
28 exercise all powers with respect to business interests and
29 operations which the principal could if present and under no
30 disability.
31     (m) Borrowing transactions. The agent is authorized to:
32 borrow money; mortgage or pledge any real estate or tangible or
33 intangible personal property as security for such purposes;
34 sign, renew, extend, pay and satisfy any notes or other forms

 

 

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1 of obligation; and, in general, exercise all powers with
2 respect to secured and unsecured borrowing which the principal
3 could if present and under no disability.
4     (n) Estate transactions. The agent is authorized to:
5 accept, receipt for, exercise, release, reject, renounce,
6 assign, disclaim, demand, sue for, claim and recover any
7 legacy, bequest, devise, gift or other property interest or
8 payment due or payable to or for the principal; assert any
9 interest in and exercise any power over any trust, estate or
10 property subject to fiduciary control; establish a revocable
11 trust solely for the benefit of the principal that terminates
12 at the death of the principal and is then distributable to the
13 legal representative of the estate of the principal; and, in
14 general, exercise all powers with respect to estates and trusts
15 which the principal could if present and under no disability;
16 provided, however, that the agent may not make or change a will
17 and may not revoke or amend a trust revocable or amendable by
18 the principal or require the trustee of any trust for the
19 benefit of the principal to pay income or principal to the
20 agent unless specific authority to that end is given, and
21 specific reference to the trust is made, in the statutory
22 property power form.
23     (o) All other property powers and transactions. The agent
24 is authorized to: exercise all possible powers of the principal
25 with respect to all possible types of property and interests in
26 property, except to the extent the principal limits the
27 generality of this category (o) by striking out one or more of
28 categories (a) through (n) or by specifying other limitations
29 in the statutory property power form.
30 (Source: P.A. 85-701.)".