We have a customer who has one power of attorney on file, and who later gave us a non-statutory form (drafted by the customer’s attorney) that names a different agent, without revoking the previous power of attorney. Can both agents act as co-agents?

Under Illinois law, it is possible for a principal to name two agents in separate power of attorney forms (even though the statutory form does not permit the naming of co-agents). 755 ILCS 45/2-10.5. In addition, a power of attorney will remain in effect until either the principal dies or revokes the power of attorney. 755 ILCS 45/2-5. A 2011 amendment to the law clarified that subsequent powers of attorney will not automatically revoke previous powers of attorney, unless the power of attorney provides that it revokes all previous powers or revokes a specific previous power. See Public Act 96-1195.

In this situation, because the second power of attorney did not revoke any previous powers of attorney, both the first and second powers of attorney remain in effect. In this situation, we believe that both agents will have to act as co-agents, to the extent that both agents have the same authority. Section 2-10.5 of the Illinois Power of Attorney Act (which was added by the 2011 amendment) governs co-agents, and — unless a power of attorney otherwise provides — it requires co-agents to exercise their power by majority consent, unless one of the agents is temporarily incapacitated (for example, due to absence or illness). 755 ILCS 45/2-10.5(b).

Also, note that a 2012 amendment to the law clarified that certain types of powers that are granted to banks and other financial institutions are not subject to the law’s provisions. 755 ILCS 45/2-4(c). The excluded agencies are:

(1) A proxy or other delegation to exercise voting or management rights with respect to a corporation, partnership, limited liability company, condominium, commercial entity or association,

(2) An agreement or contract given to a financial institution to facilitate a specific transfer or disposition of stocks, bonds, or assets (whether real or personal, tangible or intangible),

(3) An agreement or directive authorizing a financial institution to prepare, execute, deliver, submit, or file a document or instrument with a governmental entity or other third party,

(4) An agreement or contract authorizing a financial institution or officer of a financial institution to take a specific action in relation to an account in which the financial institution (i) holds cash, securities, commodities or other financial assets on behalf of the principal or (ii) acts as an investment manager with a third party serving as the custodian of such financial assets on behalf of the principal,

(5) An agreement or contract authorizing a financial institution to take specific actions with respect to collateral in connection with a loan or other secured credit transaction, other than a mortgage,

(6) An agreement or contract given to a financial institution by an individual who is or is seeking to become an owner, director, officer, stockholder, employee, partner, member, unit owner, equity owner, trustee, manager or agent of a corporation, partnership, limited liability company, condominium, association, or other legal or commercial entity, in that individual’s capacity as such, including an agreement or directive contained in a subscription agreement,

(7) An authorization contained in a certificate of incorporation, bylaws, general or limited partnership agreement, limited liability company agreement, declaration of trust, declaration of condominium, condominium offering plan, or other agreement or instrument governing the internal affairs of an entity or association, authorizing a director, officer, shareholder, employee, partner (general or limited), member, unit owner, equity owner, trustee, manager, or other person to take lawful actions relating to such entity or association, and

(8) An agreement authorizing the acceptance of the service of process on behalf of the person executing the agreement.