The Property Power of Attorney is a document that allows the creator to name the individual and successors who will make decisions regarding his or her assets during the creator’s incapacity.  The Power is effective upon the creator’s incapacity (as determined by his or her physician and health care agent) and terminates upon the creator’s death.  The Power can also be effective immediately if the creator chooses, but should only be so if the creator requires immediate assistance in managing his or her assets.

Generally, the spouse is named as the initial agent for property, but what happens to the Power of Attorney if the couple gets divorced?

The Illinois legislature has provided a direct answer for this situation.  Section 2-6(b) of the Illinois Power of Attorney Act states:

If a court enters a judgment of dissolution of marriage or legal separation between the principal and his or her spouse after the agency is signed, the spouse shall be deemed to have died at the time of the judgment for all purposes of the agency.

Therefore, if a couple divorces and the creator of the Power becomes incapacitated prior to having a new Power of Attorney prepared, the successor agent will automatically step in as agent, rather than the former spouse.