Yes, Illinois law does allow an agent under a power of attorney (POA) to exercise a trust settlor’s powers “with respect to revocation, amendment, or distribution of trust property,” provided that the power of attorney expressly authorizes the agent to exercise such powers, and provided that the trust instrument does not prohibit the agent from exercising such powers.

Under the Illinois Trust Code, a settlor’s powers with respect to revocation, amendment, or distribution of trust property in a revocable trust may be exercised by an agent under power of attorney if those powers are expressly authorized in the power of attorney and not prohibited by the trust instrument. In other words, the trust instrument itself does not need to contain a power of attorney provision. The Illinois Power of Attorney Act further explains that a power of attorney document must include “specific authority and specific reference to the trust.”

Consequently, your bank will have to confirm that the power of attorney document includes specific authority and a specific reference to the trust for the agent. For example, a template Statutory Short Form Power of Attorney for Property from the Illinois Power of Attorney Act will not suffice, as it does not include the required specific authority and specific reference to the trust.

Additionally, your bank will have to confirm that the trust document does not prohibit an agent under a power of attorney from exercising the settlor’s powers. To avoid reviewing the entire trust instrument, we recommend obtaining a Certification of Trust from the customer to verify pertinent information about the trust without obtaining the entire trust instrument. Your bank may also request that the trustee “furnish copies of those excerpts from the original trust instrument and later amendments that designate the trustee and confer upon the trustee the power to act in the pending transaction.” Importantly, the Illinois Trust Code relieves any person from liability for acting in reliance upon a certification of trust, unless the bank has actual knowledge that the certification’s representations are incorrect or acts in reliance upon the certification in bad faith.

For resources related to our guidance, please see:

• Illinois Trust Code, 760 ILCS 3/602(e) (“A settlor’s powers with respect to revocation, amendment, or distribution of trust property may not be exercised by an agent under a power of attorney unless expressly authorized by the power and not prohibited by the trust instrument.”)

• Illinois Trust Code, 760 ILCS 3/105(b)(8) (“Specific terms of the trust prevail over any provision of this Code except: . . . the requirement under subsection (e) of Section 602 that an agent under a power of attorney must have express authorization in the agency to exercise a settlor’s powers with respect to a revocable trust. . . .”)

• Illinois Power of Attorney Act, 755 ILCS 45/2-9 (“Preservation of estate plans and trusts. . . . An agent may not revoke or amend a trust revocable or amendable by the principal or require the trustee of any trust for the benefit of the principal to pay income or principal to the agent without specific authority and specific reference to the trust in the agency. . . .”)

• Illinois Power of Attorney Act, 755 ILCS 45/3-4(b) (“Explanation of powers granted in the statutory short form power of attorney for property. . . . (b) Financial institution transactions. . . . This authorization shall not apply to accounts titled in the name of any trust subject to the provisions of the Illinois Trust Code, for which specific reference to the trust and a specific grant of authority to the agent to withdraw income or principal from such trust is required pursuant to Section 2-9 of the Illinois Power of Attorney Act and subsection (n) of this Section.”)

• Illinois Power of Attorney Act, 755 ILCS 45/3-4(n) (“Explanation of powers granted in the statutory short form power of attorney for property . . . . (n) Estate transactions. The agent is authorized to . . . assert any interest in and exercise any power over any trust, estate or property subject to fiduciary control . . . and, in general, exercise all powers with respect to estates and trusts which the principal could if present and under no disability; provided, however, that the agent may not . . . revoke or amend a trust revocable or amendable by the principal or require the trustee of any trust for the benefit of the principal to pay income or principal to the agent unless specific authority to that end is given, and specific reference to the trust is made, in the statutory property power form.”)

• Illinois Trust Code, 760 ILCS 3/1013(a) (“Instead of furnishing a copy of the trust instrument to a person other than a beneficiary, the trustee may furnish to the person a certification of trust. . . .”)

• Illinois Trust Code, 760 ILCS 3/1013(e)  (“A recipient of a certification of trust may require the trustee to furnish copies of those excerpts from the original trust instrument and later amendments that designate the trustee and confer upon the trustee the power to act in the pending transaction.”)

• Illinois Trust Code, 760 ILCS 3/1013(f) (“A person who acts in reliance upon a certification of trust without actual knowledge that the representations contained therein are incorrect is not liable to any person for so acting and may assume without inquiry the existence of the facts contained in the certification. . . .”)

• Illinois Trust Code, 760 ILCS 3/1013(g) (“A person who in good faith enters into a transaction in reliance upon a certification of trust may enforce the transaction against the trust property as if the representations contained in the certification were correct.”)