Find Legal Information

Following the death of Paul Downing, plaintiff Fort Dearborn Life Insurance Company filedan interpleader action (735 ILCS 5/2-409 (West 1998)) against Susan Downing, the decedent'swidow, and Janet Holcomb, the decedent's companion at the time of his death. The action sought toresolve competing claims to the proceeds of two insurance policies decedent held with the plaintiff. Defendant-appellant Janet Holcomb appeals from the circuit court of Cook County's grant ofsummary judgment in favor of defendant-appellee Susan Downing which declared Susan the properbeneficiary under the life insurance policies. Janet argues that the trial court erred in applying theprovisions of the Illinois Power of Attorney Act (755 ILCS 45/1-1 et seq. (West 1998)) to theuncontested facts with regard to two issues: (1) the scope of the agent's authority pursuant to thesubject power of attorney and (2) whether the agent's authority had been revoked. For the followingreasons, we reverse and remand for further proceedings consistent with this opinion.

I. FACTS

Paul and Susan Downing were married on February 27, 1967. The couple had threechildren. On June 27, 1990, Paul executed a document entitled "Power of Attorney" (1990 power)which appointed his wife Susan as his agent to act on his behalf in certain enumerated propertytransactions. The agency created by the 1990 power became effective only upon Paul's disability. In 1992, Paul and Susan experienced marital difficulties which culminated in Paul's departure fromthe marital home in June of 1992. In 1993, Susan filed a petition for dissolution of marriage in thecircuit court of Cook County under case number 93 D 6708.

On December 22, 1993, Paul and Susan entered into a formal separation agreement (1993agreement) which provided for the equitable distribution of most of their assets in the event thattheir current attempts at reconciliation failed. Assets accounted for in the 1993 agreement includedthe Downings' marital home, located at 1015 Pine Street in Winnetka, Illinois, a single-familyresidence in Galena, Illinois, which the Downings owned jointly through a land trust, jointly heldinvestment accounts with a total value of $1,328,400 and retirement funds owned by Paul totaling$1,099,950. The agreement further provided that neither party would by beneficiary designation,will, inter vivos trust or in any other way allow the property subject to the agreement to become theproperty of any other person at the death of the party holding title.

At the time the 1993 separation agreement was executed, Paul was the named insured ontwo group life insurance policies issued by the Fort Dearborn Life Insurance Company. The firstpolicy was issued to the Safer Foundation, Paul's employer, as policyholder with a death benefitequal to $158,000. The second policy was issued to Healthcare Services Corporation, aspolicyholder, with a death benefit of $120,000. The 1993 agreement did not account for or includeany reference to the subject life insurance policies. The policies named Susan Downing as the solebeneficiary.

Sometime prior to 1994, Paul returned to the marital home. On April 19, 1994, Paul andSusan executed an additional agreement whereby Paul agreed to leave the marital home and toremove most of his possessions. Paul and Susan lived separate and apart from that time forward. In1995, a second petition for dissolution of the Downing marriage was filed in the circuit court ofCook County under case number 95 D 3620.

In early June 1995, Paul became seriously ill and sought medical treatment at NorthwesternMemorial Hospital. During a series of admissions to Northwestern, Paul was diagnosed with awidespread, virulent cancer. His health rapidly deteriorated. Paul died from cancer on July 7, 1995,leaving three adult sons and his estranged wife Susan surviving him.

For several years prior to and continuing until his death, Paul Downing was involved in aromantic relationship with Janet Holcomb. While confined to Northwestern for tests and treatment,Paul requested that his private secretary, Laverne Anderson, obtain change of beneficiary forms forhis life insurance policies with Safer Foundation and Healthcare Services Corporation. On June 21,1995, Anderson delivered the forms to the hospital and observed Paul complete and sign them. After signing the forms, Paul then instructed Anderson to deliver the change of beneficiary forms tothe human resource department at the Safer Foundation. The change of beneficiary forms executedby Paul on June 21, 1995, named his companion Janet Holcomb as the sole beneficiary.

The power of attorney executed by Paul in 1990 states that the agency created thereinwould become effective upon a written declaration of his disability by his personal physician, NealStone, M.D. On June 27, 1995, at the request of Daniel Hales, attorney for Paul's wife Susan, Dr.Stone declared Paul disabled. On June 30, 1995, Susan faxed a copy of the 1990 power to the SaferFoundation as insurance transactions were included in the agency. In response, Paul's attorney,Anthony J. Pauletto, immediately faxed a letter to both Susan's attorney and the Safer Foundationdenying the validity of the 1990 power based on the acrimonious nature of the Downings'relationship and the pending litigation for the dissolution of their marriage.

On July 2, 1995, Dr. Stone reexamined Paul and notified both Janet and Susan that Paul wasnow competent to make decisions. Shortly after Dr. Stone's declaration, Paul drafted and signed astatement, dated July 2, 1995, which appointed Janet Holcomb as his attorney-in-fact for thepurpose of making medical decisions and granted her unlimited visiting privileges. Paul also statedthat Susan was not allowed to make decisions regarding his care or finances. Paul further stated thatSusan was prohibited from visiting or contacting him absent the express consent of his attorney,Anthony J. Pauletto. This statement was not communicated to Susan or the Safer Foundation untilafter Paul's death.

On July 5, 1995, Paul was again declared disabled by Dr. Stone. On this date, consideringherself acting as Paul's agent pursuant to the 1990 power, Susan executed a change of beneficiaryform for the life insurance policy held by Health Care Services Corporation. On July 6, 1995, Susanexecuted an additional change of beneficiary form for the life insurance policy held by the SaferFoundation. On each change of beneficiary form, Susan named herself as the sole beneficiary. After Paul's death on July 7, 1995, Susan submitted a claim to Fort Dearborn Life InsuranceCompany for death benefits under the subject policies.

In light of the foregoing facts, Fort Dearborn instituted an interpleader action in the circuitcourt of Cook County, under case number 95 CH 9183, alleging that the rightful claimant to theinsurance proceeds remained unclear. In response to this action, Janet Holcomb filed acounterclaim against Susan Downing and Fort Dearborn claiming that she is entitled to the deathbenefit proceeds as a result of the June 21, 1995, beneficiary designations by Paul Downing. SusanDowning then filed a cross-claim alleging in counts I and II that the June 21, 1995, change ofbeneficiary forms executed by Paul were void and unenforceable due to Paul's lack of mentalcapacity and Janet's exercise of undue influence. In count III, Susan further alleged that she was thenamed beneficiary at the time of Paul's death because the change of beneficiary forms executed byher in July 1995 were a proper exercise of the authority granted to her in the 1990 power.

Following a hearing on July 31, 1996, the trial court denied Janet's motion for partialsummary judgment pursuant to section 2-1005(d) of the Illinois Code of Civil Procedure (735 ILCS5/2-1005(d) (West 1998)) which sought a determination that the 1990 power did not authorizeSusan to execute change of beneficiary forms. In ruling, the trial court determined as a matter oflaw that the power of attorney in the case at bar was not a "Statutory Short Form Power of Attorneyfor Property" (Short Form) thereby entitling its provisions to be given the meaning and effectprescribed in Article III of the Illinois Power of Attorney Act, also known as the "Statutory ShortForm Power of Attorney for Property Law" (Short Form Act) 755 ILCS 45/3-1 et seq. (West 1998). Instead, the court ruled that the 1990 power was a "nonstatutory" property power governed byArticle II of the Illinois Power of Attorney Act, also known as the "Durable Power of Attorney Law"(755 ILCS 45/2-1 et seq. (West 1998)). As such, the court determined that the 1990 power grantedSusan broad plenary powers, including the power to change beneficiaries on Paul's life insurancepolicies. The trial court then instructed the parties that further proceedings would be limited towhether Paul properly revoked the 1990 power.

On September 27, 1999, after hearing argument on the parties' cross-motions for summaryjudgment, the trial court reaffirmed its prior ruling that the 1990 power was "durable" and grantedSusan authority to change the beneficiary on Paul's life insurance policies. The court furtherdetermined that the agency created by the 1990 power had not been revoked by Paul prior to hisdeath. Thus, summary judgment was granted in favor of Susan Downing on count III of her secondamended cross-claim and Janet Holcomb's motion for summary determination of major issues wasdenied. In addition, counts I and II of Susan's second amended cross-claim, alleging lack of mentalcapacity and undue influence, were rendered moot. This appeal followed.

II. ANALYSIS

Janet contends on appeal that the trial court erred by (1) failing to apply the provision insection 3-4 of the Short Form Act that expressly states that an agent does not have the power tochange any beneficiary designated by the principal, (2) determining that the 1990 power was a"broad form" or "durable" power of attorney not subject to the limitations in section 3-4 of the ShortForm Act, (3) interpreting a "catchall" provision in the 1990 power as authorization to changebeneficiaries, and (4) finding that the agency created by the 1990 power was not effectively revoked. It is important to note that Janet, as appellant, does not argue that the evidence before the trial courtgave rise to a triable issue of material fact, thereby precluding summary judgment. Thus, the soleissue on appeal is whether the trial court properly applied the relevant law to the uncontested factsof this case.

Summary judgment is proper when the pleadings, depositions, admissions on file and anyaffidavits show that there is no genuine issue of material fact and the moving party is entitled tojudgment as a matter of law. 735 ILCS 5/2-1005(c) (West 1998). The interpretation of a formalpower of attorney and the effect of relevant statutory provisions on the powers granted the agentnamed therein are questions of law that are appropriately decided on a motion for summaryjudgment. See Wirtz Realty Corp. v. Freund, 308 Ill. App. 3d 866, 873 (1999). The standard ofreview on a summary judgment ruling involving statutory interpretation is de novo. King v.Industrial Comm'n, 189 Ill. 2d 167,171 (2000); McNamee v. State, 173 Ill. 2d 433, 438 (1996).

A. Statutory Short Form Power of Attorney for Property Law

At issue in this appeal is whether the subject power of attorney is governed by the provisionsof the Short Form Act (755 ILCS 45/3-1 et seq. (West 1998)). It is uncontested that if the 1990power is a Short Form, Susan Downing would have been statutorily precluded from changing thebeneficiary on Paul's life insurance policies as such authority was not expressly granted in thepower. If, however, the 1990 power is a nonstatutory property power governed by the DurablePower of Attorney Law, the court must interpret the provisions of the 1990 power to determine ifthe language therein granted Susan full plenary powers that would include authority to change Paul'sbeneficiary designation.

The Short Form Act was enacted by the legislature for the purpose of creating a standardizedform that individuals could readily use to authorize an agent to act for them in dealing with theirproperty and financial affairs. 755 ILCS 45/3-1 (West 1998). Section 3-3 of the Short Form Act setsforth the conditions necessary for a power of attorney to be considered a Short Form. Specifically,this section provides:

"The following form may be known as 'statutory property power' and may be used togrant an agent powers with respect to property and financial matters. When a powerof attorney in substantially the following form is used, including the 'notice'paragraph at the beginning in capital letters and the notarized form ofacknowledgment at the end, it shall have the meaning and effect prescribed in thisAct." (Emphasis added.) 755 ILCS 45/3-3 (West 1998).

The question of what constitutes "substantial" compliance with the Short Form is one of firstimpression in Illinois.

When construing a disputed statutory provision, the court's primary goal is to ascertain andgive effect to the legislature's intent. In re J.R., 307 Ill. App. 3d 175, 180 (1999). To determine thelegislative intent, we first consider the statutory language. State Farm Fire & Casualty Co. v.Yapejian, 152 Ill. 2d 533, 540-41 (1992). The language within each section of a statute must beexamined in light of the entire statute. Stone v. Department of Employment Security Board ofReview, 151 Ill. 2d 257, 261 (1992). The court may also consider the reason and necessity for thelaw, the evils to be remedied, and the objectives to be attained. Koperski v. Amica MutualInsurance Co., 287 Ill. App. 3d 494, 497 (1997). The court will assume that the legislature did notintend to produce an absurd or unjust result. Yapejian, 152 Ill. 2d at 541.

The trial court determined that the power of attorney executed by Paul Downing in 1990 was not in "substantially" the form set forth in the section 3-3 and was therefore not entitled to themeaning and effect prescribed in the Short Form Act. The court stated:

"If it had been a short form power of attorney, yes, Susan Downing could not changethe beneficiary unless it was specifically indicated therein, but this document doesn'tfollow the statutory form and I have interpreted it as being a long form or a generaldoable [sic] power of attorney ***." (Emphasis added).

The trial court, after acknowledging that the first paragraph of the 1990 power specificallyreferences the Short Form Act, went on to state, "after that everything kind of falls apart and istotally different than the short form in the statute." The trial court also stated, "[u]ndoubtedly, the[s]ection 3 form is used as a model for Paul's power of attorney, but internal evidence suggests itwas not intended to be limited by section 3." (Emphasis added.) We disagree.

The disposition of this case turns on whether the form outlined in section 3-3 of the ShortForm Act, for use when creating a "statutory property power," is mandatory. Whether a statutoryprovision is mandatory or merely directory depends upon the intent of its drafters. North ShoreCommunity Bank & Trust Co. v. Kollar, 304 Ill. App. 3d 838, 846 (1999). As noted, intent is firstascertained from the language of the statutory provision. Yapejian, 152 Ill. 2d at 541. Whenconstruing a statute, words must be given their plain and ordinary meaning. O'Connor v. CookCounty Officers Electoral Board, 281 Ill. App. 3d 1108, 1112 (1996).

The word "substantially," as used in the context found in section 3-3, has been defined as"'in the main,' 'essentially,' 'practically,' 'nearly,' 'almost' or 'virtually.'" O'Connor, 281 Ill. App. 3d at1113. "It does not mean 'identically' or 'exactly alike,' and thus, does not connote a mandatoryobligation as to the form ***." O'Connor, 281 Ill. App. 3d at 1113. Thus, we hold that the ShortForm provided in section 3-3 is merely directory and that absolute or exact compliance with thestatutory format is not required. It is axiomatic that if the legislature had intended that every ShortForm power of attorney be in the exact form set out in section 3-3, it would not have used the word"substantially."

Further support for this interpretation is found in the statutory language of section 3-1 of theShort Form Act, where the General Assembly states its purpose for adopting the Short Form. Thissection states, in relevant part:

"A short statutory form offering a set of optional powers is necessary so that theindividual may design the power of attorney best suited to his or her needs in asimple fashion and be assured that the agent's authority will be honored by thirdparties with whom the agent deals, regardless of the physical or mental condition ofthe principal at the time the power is exercised." (Emphasis added.) 755 ILCS 45/3-1(West 1998).

By indicating that a person "may design" the Short Form to suit his or her individual needs, thelegislature obviously intended that powers of attorney varying to some extent from the Short Formin section 3-3 would still be entitled to the meaning and effect prescribed in the Short Form Act.

Susan argues on appeal that the 1990 power's failure to include the "notice" provisionrequired by section 3-3 precludes a finding that the 1990 power is a Short Form. Susan's argumentmust fail. This court's holding that the form outlined in section 3-3 of the Short Form Act is merelydirectory encompasses the notice provision. While section 3-3 states that the Short Form"includ[es] the 'notice' paragraph at the beginning in capital letters and the notarized form ofacknowledgment at the end," we must construe this provision in light of the objectives to be attainedby the notice provision and we must assume that the legislature did not intend to produce an absurdor unjust result. Yapejian, 152 Ill. 2d at 541.

The notice provision in section 3-3 of the Short Form Act provides in part:

"(NOTICE: THE PURPOSE OF THIS POWER OF ATTORNEY IS TO GIVE THEPERSON YOU DESIGNATE (YOUR 'AGENT') BROAD POWERS TO HANDLEYOUR PROPERTY, WHICH MAY INCLUDE POWERS TO PLEDGE, SELL OROTHERWISE DISPOSE OF ANY REAL OR PERSONAL PROPERTY WITHOUTADVANCE NOTICE TO YOU OR APPROVAL BY YOU. *** THE POWERSYOU GIVE YOUR AGENT ARE EXPLAINED MORE FULLY IN SECTION 3-4OF THE ILLINOIS 'STATUTORY SHORT FORM POWER OF ATTORNEY FORPROPERTY LAW' OF WHICH THIS FORM IS A PART (SEE THE BACK OFTHIS FORM). THAT LAW EXPRESSLY PERMITS THE USE OF ANYDIFFERENT FORM OF POWER OF ATTORNEY YOU MAY DESIRE.)" 755ILCS 45/3-3 (West 1998).

It is clear that the function of this provision is simply to inform the principal of the nature of thepowers he is granting his agent. Indeed, it would be an "absurd or unjust result" if a power ofattorney that complies with the Short Form in all other respects loses its status as a "statutoryproperty power" solely because it does not include the notice provision. This is especially true inlight of the fact that such an interpretation would give the agent much broader powers than intendedby the principal. Therefore, we conclude that whether a power of attorney "substantially" followsthe form outlined in section 3-3 does not depend on the presence or absence any particular clause. Rather, the court must determine whether the power of attorney, in its totality, indicates that thelegislative purpose of the Short Form Act has been satisfied. See O'Connor, 281 Ill. App. 3d at1113; Kathy O. v. Counseling & Family Services, 107 Ill. App. 3d 920, 925 (1982) (upholding thevalidity of adoption consents, and noting that the purpose of the relevant statute had been satisfied,even though the form was deficient).

In order to determine whether the power of attorney at issue in this case is a Short Form, wemust compare it with the statutory provisions. The power of attorney executed by Paul Downing in1990 provides, in relevant part:

"POWER OF ATTORNEY made this 27th day of June, 1990

1. I, Paul Downing, hereby appoint: Susan Downing as my attorney-in-fact (my'agent') to act for me and in my name (in any way I could act in person) with respectto the following powers, as defined in Section 3-4 of the 'Statutory Short Form Powerof Attorney for Property Law' including all amendments), but subject to anyadditions to the specified powers inserted in paragraph 3 below:

(a) Real estate transactions.

(b) Financial institution transactions.

(c) Stock and bond transactions.

(d) Tangible personal property transactions.

(e) Safe deposit box transactions.

(f) Insurance and annuity transactions.

(g) Retirement plan transactions.

(h) Social Security, employment and military service benefits.

(i) Tax matters.

(j) Claims and litigation.

(k) Commodity and option transactions.

(l) Business operations.

(m) Borrowing transactions.

(n) Estate transactions.

(o) All other property powers and transactions."

This introductory paragraph is virtually identical to the Short Form in section 3-3, which isset out in the appendix. The only difference between the first paragraph of 1990 power and theShort Form is that in the last sentence before statutory powers (a) through (o) are listed, the statutoryform states, "subject to any limitations on or additions to the specified powers inserted in paragraph2 or 3 below." (Emphasis added.) 755 ILCS 45/3-3 (West 1998). In the 1990 power, Paul struckthe words "limitations on" because he did not include any such limitations in paragraphs 2 or 3 ofthe power. This slight difference illustrates how the Short Form may be tailored to meet theindividual needs of the principal as noted above in the General Assembly's stated purpose. See 755ILCS 45/3-1 (West 1998).

The trial court found it significant that the second paragraph in the 1990 power is totallydifferent from the second paragraph in the Short Form. Once again, we note that the legislatureintended that the Short Form be altered if it is inconsistent with the needs of the principal. Paragraph 2 of the Short Form states:

"2. The powers granted above shall not include the following powers or shall bemodified or limited in the following particulars (here you may include any specificlimitations you deem appropriate, such as a prohibition or conditions on the sale ofparticular stock or real estate or special rules on borrowing by the agent): ***." 755ILCS 45/3-3 (West 1998).

As the 1990 power did not place any additional limitations on the statutory powers (a) through (o),paragraph 2 of the Short Form became irrelevant. Instead, the second paragraph of the 1990 powercontains the following language:

"2. In addition to the powers granted above, I grant my agent full power and authorityto do and perform all and every other act and thing that I may legally do through anattorney in fact, and every proper power to carry out those acts and things."

The trial court interpreted paragraph 2 of the 1990 power as a significant departure from theShort Form, evincing an intent by Paul that his power of attorney not be limited by the Short FormAct. The trial court also rejected Janet's argument that the holding of the appellate court in In reGuardianship of Mabry, 281 Ill. App. 3d 76 (1996), controlled this issue. The trial courtdistinguished Mabry, stating that the clause at issue in Mabry did not contain the same language asparagraph 2 of the 1990 power. We disagree.

In re Guardianship of Mabry, 281 Ill. App. 3d 76 (1996), involved a dispute over whether apower of attorney granted the agent the power to sell or transfer real estate. The instrumentexpressly granted the agent the authority in paragraph 1 "'[t]o manage and lease my real estate,collect the rent therefrom and pay the usual and customary expenses paid by owners of real estate'."Mabry, 281 Ill. App. 3d at 83. Paragraph 7 granted the agent additional power, "in general, to do allother acts, matters and things whatsoever in or about the specified premises of this Power ofAttorney to all intents and purposes as I could do in my own proper person if personally present."Mabry, 281 Ill. App. 3d at 83. The appellate court rejected plaintiff's argument that the "catchall"provision in paragraph 7 should be read as a grant of full plenary powers to do all acts regarding thesubject property including the power to sell or transfer. The appellate court stated as follows:

"In the statutory short form power of attorney, a grant of authority with respect to'[a]ll other property powers and transactions' will not operate to reinvigorate acategory which the principal had expressly limited within the same document.[Citation.] Thus, a catchall provision will not expand a specifically limited powerabsent clear evidence of the principal's intent that it do so." Mabry, 281 Ill. App. 3dat 84.

While the Short Form in section 3-3 does not include a "catchall" provision on its face,section 3-4 (o) of the Short Form Act, incorporated by reference in paragraph 1 of the Short Form,states as follows:

"(o) All other property powers and transactions. The agent is authorized to: exerciseall possible powers of the principal with respect to all possible types of property andinterests in property, except to the extent the principal limits the generality of thiscategory (o) by striking out one or more of categories (a) through (n) or by specifyingother limitations in the statutory property power form." (Emphasis added.) 755 ILCS45/3-4 (West 1998).

This "catchall" provision, which seemingly grants broad powers to the agent, is similar to paragraph2 of the 1990 power. Both of these provisions merely grant the agent any additional powers notspecifically mentioned that may be necessary to carry out the powers granted in statutory categories(a) through (n). Accordingly, we find that Paul's use of a "catchall" provision in paragraph 2 of the1990 power does not indicate a significant departure from the Short Form. Furthermore, pursuantto In re Guardianship of Mabry, 281 Ill. App. 3d 76 (1976), neither of these "catchall" provisionscan be interpreted as an expansion of powers expressly limited by section 3-4, which states:

"[T]he agent will not have power under any of the statutory categories (a) through(o) to *** change any beneficiary whom the principal has designated to take theprincipal's interests at death under any will, trust, joint tenancy, beneficiary form orcontractual arrangement." 755 ILCS 45/3-4 (West 1998).

The trial court found it significant that the provisions in paragraph 3 of the Short Form wereomitted from the 1990 power. We also find this fact significant, but for different reasons. Paragraph three in the Short Form states:

"3. In addition to the powers granted above, I grant my agent the following powers(here you may add any other delegable powers including, without limitation, powerto make gifts, exercise powers of appointment, name or change beneficiaries or jointtenants or revoke or amend any trust specifically referred to below):*** ." (Emphasisadded.) 755 ILCS 45/3-3 (West 1998).

As noted previously, a principal who does not intend to grant his agent any additional powers doesnot need to include a paragraph that would be irrelevant in order to "substantially" follow the ShortForm. In addition, we find that Paul's omission of paragraph three from the 1990 power evinces anintent by Paul that his agent not be granted any additional powers, such as the power to name orchange beneficiaries.

As the provisions in paragraph 3 of the Short Form are omitted from the 1990 power, paragraph 3 of the 1990 power contains the exact provision contained in paragraph 4 of the ShortForm and provides as follows:

"3. My agent shall have the right by written instrument to delegate any or all of theforegoing powers involving discretionary decision-making to any person or personswhom my agent may select, but such delegation may be amended or revoked by anyagent (including any successor) named by me who is acting under this power ofattorney at the time of reference."

Similarly, paragraph 4 of the 1990 power substantially follows paragraph 5 of the Short Form as itstates, "[m]y agent shall not be entitled to reasonable compensation for services rendered as agentunder this power of attorney."

The trial court's determination that paragraph 5 of the 1990 power did not follow the ShortForm because of how it defines "disability" is erroneous. Paragraph 5 of the 1990 power provides,in relevant part:

"5. This power of attorney shall become effective only upon my disability orincapacity as hereinafter defined ***. 'Disability or incapacity' shall mean asubstantial impairment of my ability to care for my person and/or property by reasonof age, illness, infirmity, mental weakness, intemperance, and or addiction to drugs.*** ."

We do not interpret this paragraph as a significant departure from the Short Form. Paragraph 6 ofthe Short Form contains only the following clause: "[t]his power of attorney shall become effectiveon ***." The principal is then instructed to "insert a future date or event during your lifetime,"without any limitation on how such date or event is defined. The definitions in section 2-3 of theDurable Power of Attorney Law (755 ILCS 45/2-3 (West 1998)) only define the term "disability" asused by the legislature in the Illinois Power of Attorney Act. This definition is not binding on theprincipal's use of the word "disability" when the power expressly adopts a different meaning.

We also determine that paragraphs 6 through 9 "substantially" follow the Short Form. Inthese four paragraphs, the 1990 power: (1) names a successor agent, (2) nominates Susan asguardian of Paul's person and property if a guardian is appointed and (3) states that Paul is fullyinformed as to the effect of his grant of power. The 1990 power also includes the notarizedacknowledgment at the end in the exact form that the Short Form Act requires in order for a ShortForm power of attorney to become effective.

Considering the subject power of attorney in its totality as the law mandates we must, weconclude that the 1990 power is a Short Form entitled to the meaning and effect prescribed inArticle III. Accordingly, Susan Downing was statutorily precluded from changing the beneficiaryon Paul Downing's life insurance policies pursuant to section 3-4 of the Short Form Act.

B. Durable Power of Attorney Law

It should be noted that even were we to assume that the power of attorney executed by PaulDowning in 1990 was a "nonstatutory" property power governed by the Durable Power of AttorneyLaw, the result we reach would be no different. Section 2-4 of the Durable Power of Attorney Lawprovides in part:

"Applicability. (a) The principal may specify in the agency the event or time whenthe agency will begin and terminate, the mode of revocation or amendment and therights, powers, duties, limitations, immunities and other terms applicable to the agentand to all persons dealing with the agent, and the provisions of the agency willcontrol notwithstanding this Act ***. " (Emphasis added.) 755 ILCS 45/2-4 (West1998).

Susan argues that if the 1990 power is a durable power, then the "catchall" provision in the secondparagraph granted her "broad" powers which are not subject to the limitations inherent in section 3-4of the Short Form Act. Rather, Susan urges that the "catchall" provision granted her full plenarypowers, including the right to change beneficiary designations. Again, we disagree.

As noted, the 1990 power grants enumerated general powers to Susan identical to those listed in the Short Form Act. Significantly, the first paragraph of the document references "Section3-4 of the 'Statutory Short Form Power of Attorney for Property Law'" in defining the scope of thepowers granted by the agency. This reference indicates a clear intention of the principal toincorporate the definitions and limitations found in section 3-4 and to make them a part of theagency. Hence, even as a "durable" or "broad form" power of attorney, the provisions of section 3-4will be applied as if they were expressly written in the document itself. See Stone v. Department ofEmployment Security Board of Review, 151 Ill. 2d 257 (1992); Wilson v. Wilson, 217 Ill. App. 3d844 (1991).

Section 3-4 (f) of the Short Form Act delineates what powers were conferred to SusanDowning regarding insurance and annuity transactions. This section states:

"The agent is authorized to: procure, acquire, continue, renew, terminate or otherwisedeal with any type of insurance or annuity contract (which terms include, withoutlimitation, life, accident, health, disability, automobile casualty, property or liabilityinsurance); pay premiums or assessments on or surrender and collect all distributions,proceeds or benefits payable under any insurance or annuity contract; and, in general,exercise all powers with respect to insurance and annuity contracts which theprincipal could if present and under no disability." 755 ILCS 45/3-4(f) (West 1998).