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JUSTICE HOMER delivered the opinion of the court:

Klara Hoopingarner filed a three-count complaint againstJennifer Stenzel, New York Life Insurance and Annuity Corporation(New York Life) and Fred Elmore. Count I alleged that Stenzelviolated the Illinois Power of Attorney Act, count II allegedthat New York Life committed fraud, and count III alleged fraudagainst Fred Elmore. Count II was dismissed, and Hoopingarnerdoes not appeal that dismissal. The trial court granted summaryjudgment in favor of Stenzel on count I and granted Elmore'smotion to dismiss count II. Hoopingarner appeals, and we affirm.
 

In 1989, Helen Peters was issued an annuity by New YorkLife. Peters' daughter, Karen Elmore, and granddaughter,Jennifer Stenzel, were named the beneficiaries. Karen Elmoredied in August of 1993. In October of 1993, Peters executed herlast will. She named Jennifer Stenzel the sole beneficiary, andFirst of America Bank was named trustee. That same year, Petersexecuted a power of attorney naming her son-in-law, Fred Elmore,and Jennifer Stenzel her attorneys in fact.

In 1995, Klara Hoopingarner began working for Helen Petersas a housekeeper. In 1996, Peters executed a change ofbeneficiary form, designating Hoopingarner the sole beneficiaryof the New York Life annuity. Peters also executed a codicil toher will giving the annuity and $15,000 to Hoopingarner. RobertKunz, an attorney who had previously done work for Hoopingarner,prepared the codicil and helped Peters complete the New York Lifechange of beneficiary form. At the time Peters completed thechange of beneficiary form, Kunz made a copy of it and gave theoriginal to Peters. Peters did not send the completed form toNew York Life. Kunz died in 1997. In March of 1999, Petershealth worsened, and Hoopingarner called Barbara Patterson,Kunz's former secretary and Hoopingarner's personal friend, andasked her to send the change of beneficiary form to New YorkLife. Patterson mailed the copy of the form to New York Life byexpress mail.

Soon after the copy of the change of beneficiary form wassent to New York Life, Fred Elmore, the agent for the policy, wasnotified that the beneficiary had been changed. He thencontacted Stenzel and informed her. The next day, Stenzel signeda change of beneficiary form as Peters' attorney in fact,designating First of America Bank the beneficiary of the annuityas trustee, with Stenzel as the sole beneficiary of the trust. One week later, upon advice from an attorney, Stenzel requested afull surrender of the annuity, and the proceeds were placed intoPeters' checking account. Two months later, Peters died. Uponher death, the original change of beneficiary form and codicilwere not found.

Elmore filed a petition to probate Peters' will, andHoopingarner filed a three-count complaint against Stenzel, NewYork Life, and Elmore. New York Life was later dismissed. Inher complaint, Hoopingarner alleged that the change ofbeneficiary form completed by Peters was effective to make herthe beneficiary of the annuity. She further claimed that Stenzeldid not have the authority to change the beneficiary andsurrender the annuity and that Stenzel acted in bad faith whenshe did so. Hoopingarner also sought damages against Elmore forfraud associated with his acts of helping Stenzel to change thebeneficiary and surrender Peters' annuity.

Stenzel filed a motion for summary judgment arguing that (1)the change of beneficiary form was ineffective to makeHoopingarner the beneficiary of the annuity, (2) the power ofattorney given by Peters authorized her to surrender the annuity,and (3) she acted in good faith in her transactions. Elmorefiled a motion to dismiss pursuant to section 2--615 of the Codeof Civil Procedure (Code) (735 ILCS 5/2--615 (West 2000) arguingthat (1) the complaint failed to state a cause of action forfraud, (2) the complaint improperly included a cause of actionfor breach of fiduciary duty for which the plaintiff lackedstanding to claim, and (3) the complaint improperly soughtpunitive damages. Hoopingarner then filed a motion for partialsummary judgment. Stenzel's and Elmore's motions were granted bythe trial court, and Hoopingarner's motion was denied. Hoopingarner appeals.

An appellate court reviews a grant of summary judgment denovo. Warren v. Burris, 325 Ill. App. 3d 599, 603, 758 N.E. 2d889, 892 (2001). In ruling on a motion for summary judgment, thetrial court must view all evidence in the light most favorable tothe nonmovant. Warren, 325 Ill. App. 3d at 602-03, 758 N.E. 2dat 892.

Summary judgment is appropriate when the pleadings,depositions, admissions and affidavits demonstrate no genuineissue of material fact exists and the movant is entitled tojudgment as a matter of law. Warren, 325 Ill. App. 3d at 602,758 N.E. 2d at 892. Hoopingarner claims that the trial court'sgrant of summary judgment was inappropriate for the followingreasons: (1) whether Peters had effectively changed herbeneficiary was a question of fact for the jury; (2) the trialcourt's holding that Stenzel had the authority to surrender theannuity was erroneous; and (3) the trial court failed to requireStenzel to prove that she did not violate her duty as afiduciary.

Stenzel's motion for summary judgment was granted becausethe court found, as a matter of law, that the attempted change ofbeneficiary form signed by Peters in 1996 was ineffective becausePeters did not forward the form to New York Life; rather, a copywas sent in by someone else over two and one-half years after ithad been completed. Hoopingarner asserts that whether Peterseffectively changed the beneficiary of the annuity by completingthe change of beneficiary form in 1996 was a question of fact fora jury to decide.

Questions as to the effectiveness of a change of beneficiaryare generally for the jury. See Smith, 106 Ill. App. 3d at 323,435 N.E.2d at 1192. Courts have, however, granted summaryjudgment and found a change of beneficiary ineffective when theinsured clearly failed to comply substantially with therequirements for changing a beneficiary. See Kniffen v. Kniffen,119 Ill. App. 3d 106, 456 N.E.2d 659 (1983) (finding summaryjudgment was appropriate where the insured never filed writtennotice of a change of beneficiary).

Before an insured can change the designated beneficiary, theinsured must intend to do so and must make some overt actevidencing the intent. Travelers Insurance Co. v. Smith, 106Ill. App. 3d 318, 320, 435 N.E.2d 1188, 1190 (1982). Where theinsurer has specified in the policy the method for changing thebeneficiary, some type of compliance with the policy terms isrequired. Smith, 106 Ill. App. 3d at 320, 435 N.E.2d at 1190. Illinois generally requires that the insured substantially complywith the policy terms. Smith, 106 Ill. App. 3d at 320-21, 435N.E.2d at 1190.

The policy at issue provides that Peters had the right tochange her beneficiary while living by "using this signed notice,furnishing the necessary information to the Company/Corporation***." Peters failed to substantially comply with the terms ofthe policy because she never sent the change of beneficiary formto New York Life or furnished any information to New York Liferegarding a desire to change the beneficiary of the annuity.

Under these circumstances, we find that there is no genuineissue of material fact and hold, as a matter of law, that Petersdid not substantially comply with the requirements for changingthe beneficiary of her annuity. Consequently, the trial court'sgrant of summary judgment was appropriate.

Hoopingarner further argues that the trial court's grant ofsummary judgment was inappropriate because Stenzel did not havethe authority under her power of attorney to change thebeneficiary of Peters' annuity to the First of America Bank astrustee and to ultimately surrender the annuity. Stenzel's actof changing the beneficiary had no effect because the annuity wassubsequently surrendered. Therefore, the only real issue iswhether Stenzel had the authority to surrender the annuity. Thetrial court found that Stenzel had the authority under the powerof attorney to surrender the annuity, and we agree.

Under the Illinois Power of Attorney Act (Act), a power ofattorney may be classified as an Article II durable power ofattorney or an Article III statutory short form power of attorneyfor property. 755 ILCS 45/1--1 et seq. (West 2000). The trialcourt found as a matter of law that the power of attorney createdby Peters was an Article II type because it did not substantiallycomply with the form provided in Article III (755 ILCS 45/3-3(West 2000)). We agree with the trial court that the power ofattorney is governed by Article II.

Under Article II of the Act, the provisions of the power ofattorney control to determine the powers, duties, rights,limitations, immunities and other terms applicable to the agencyrelationship. 755 ILCS 45/2--4(a) (West 2000). Under the termsof the power of attorney, Stenzel had the right to surrender theannuity. Specifically, paragraph one gave Stenzel the right todeposit in or withdraw from any depository, any moneys or otherproperty belonging to Peters. Furthermore, paragraph seven ofthe power of attorney gave Stenzel the authority to take steps torecover Peters' annuities. Finally, paragraph eight gave Stenzelthe authority to dispose of any of Peters' insurance. Based onthese express grants of authority, we find that it was withinStenzel's power to surrender the annuity and place it in Peters'bank account.

Finally, Hoopingarner argues that Stenzel acted in bad faithby surrendering the annuity and placing it in Peters' account, ofwhich Stenzel was the sole beneficiary. Hoopingarner furtherargues that it should not have been her burden to establish thatStenzel acted in bad faith but that Stenzel should have beenrequired to prove that she acted in good faith.

The trial court found that Article II of the Act requiresthat Hoopingarner provide evidence that Stenzel acted in badfaith, and we agree. Article II of the Act provides that inexercising powers granted under a power of attorney, the agentshall take the principal's estate plan into account insofar as itis known to the agent and shall attempt to preserve the plan, butthe agent shall be liable to a beneficiary only if the agent actsin bad faith. 755 ILCS 45/2--9 (West 2000).

Section 2--9 of the Act clearly establishes that an agentwill only be liable if the agent acts in bad faith. Therefore,there must be some showing that the agent acted in bad faith. Weagree with the trial court that Hoopingarner failed to presentevidence to establish bad faith by Stenzel as required by section2--9.

Section 2--9 of the Act provides that the agent should takeinto account the principal's estate plan so far as it is known tothe agent. 755 ILCS 45/2--9 (West 2000). The evidence supportsthat Stenzel did consider Peters' estate plan as it was known toher when she surrendered the annuity. No evidence was presentedto show that Peters ever communicated to Stenzel a desire tochange her estate plan or to make Hoopingarner the beneficiary ofthe New York Life annuity. Because surrendering the annuityappeared to be consistent with Peters' estate plan as it wasknown to Stenzel, there was no evidence that Stenzel acted in badfaith.

The Act further provides that an agent who acts with due carefor the benefit of the principal shall not be liable or limitedmerely because the agent also benefits from the act. 755 ILCS45/2--7 (West 2000). Even though Stenzel may have benefittedfrom her acts as Peters' attorney in fact, it was necessary forHoopingarner to present evidence that Stenzel acted with a lackof due care. Because Hoopingarner failed to do so, summaryjudgment was appropriate.

II. Granting Elmore's motion to dismiss

An appellate court reviews a trial court's grant of a motionto dismiss de novo. Gofis v. County of Cook, 324 Ill. App. 3d407, 411, 754 N.E.2d 374, 378 (2001). Upon review of the grantof a motion to dismiss for failure to state a claim, the standardis whether the allegations in the complaint, when viewed in thelight most favorable to the plaintiff, sufficiently set forth acause of action upon which relief may be granted. Gofis, 324Ill. App. 3d at 411, 754 N.E.2d at 378. A complaint should bedismissed under section 2--615 if it clearly appears that no setof facts could be proved under the pleadings that would entitlethe plaintiff to relief. Gofis, 324 Ill. App. 3d at 411, 754N.E.2d at 378.

Hoopingarner claims that she properly pled a cause of actionfor either common law fraud or constructive fraud against Elmore. We agree with the trial court that Hoopingarner failed to allegesufficient facts to state a claim for either common law fraud orconstructive fraud.

In order to state a claim for common law fraud, a plaintiffmust allege a misrepresentation by the defendant that was: (1) afalse statement of material fact; (2) known or believed to befalse by the party making it; (3) intended to induce the otherparty to act; (4) acted upon by the other party in reliance uponthe truth of the representations; and (5) damaging to the otherparty as a result. Talbert v. Home Savings of America, F.A., 265Ill. App. 3d 376, 381-82, 638 N.E.2d 354, 358 (1994). Fraudclaims must include specific allegations of fact from which fraudmay be inferred. Talbert, 265 Ill. App. 3d at 382, 638 N.E.2d at359. Hoopingarner has failed to set forth a claim for common lawfraud because her complaint does not allege that Elmore knowinglymade any false statement upon which Hoopingarner relied. Infact, Hoopingarner does not allege that Elmore made anystatements to her at all. Therefore, Hoopingarner failed tostate a claim for common law fraud.

To state a claim for constructive fraud, a plaintiff mustallege facts establishing the breach of duty arising from afiduciary or confidential relationship whereby the fiduciary hasprofited. Cessna v. City of Danville, 296 Ill. App. 3d 156, 168-69, 693 N.E.2d 1264, 1272 (1998). Hoopingarner alleged thatElmore owed a fiduciary duty to Peters and alleged facts tosupport her contention that he breached his duties. We find thatthese allegations are not sufficient to assert a claim forconstructive fraud for two reasons. First, Hoopingarner does nothave standing to assert a breach of fiduciary duty on behalf ofPeters because she is not a beneficiary. See Chicago ParkDistrict v. Kenroy, Inc. 78 Ill. 2d 555, 565, 402 N.E.2d 181, 186 (1980) (holding that a beneficiary may seek restitution basedupon allegations of a breach of fiduciary duty). Second, even ifHoopingarner were able to allege Elmore's breach of duty onbehalf of Peters, Hoopingarner has failed to allege that Elmoreprofited from his actions. As a result, Hoopingarner has failedto allege the essential elements for a claim of constructivefraud.

Because Hoopingarner failed to set forth the elements ofeither common law fraud or constructive fraud, the trial courtproperly granted Elmore's motion to dismiss, and it isunnecessary for us to examine the additional arguments raised byElmore in support of his motion to dismiss.

For the foregoing reasons, the judgment of the circuit courtof Peoria County is affirmed.

Affirmed.

BRESLIN, J. concurred.

JUSTICE HOLDRIDGE, dissenting:

Summary judgment is appropriate only when the pleadings,depositions, admissions and affidavits demonstrate no genuineissue of material fact and the movant is entitled to judgment asa matter of law. Warren v. Burris, 325 Ill. App. 3d 599, 603(2001). I believe that a genuine issue of material fact existsover whether Helen Peters substantially complied with the policyterms to effect a change of beneficiary. Evidence exists that itwas Peters' intent to change her beneficiary, but to purposelydelay submitting the change of beneficiary form due to her beliefthat Stenzel and Elmore would fight her actions. This evidencecould convince a trier of fact that Peters had substantiallycomplied with the requirements to change her beneficiary.

Likewise, a genuine issue of material fact exists as towhether Stenzel was aware of Peters' desire to change her estateplan by making Hoopingarner the beneficiary of the New York Lifeannuity.

As a genuine issue of material fact exists, I would reversethe trial court's grant of summary judgment to the defendants. Itherefore respectfully dissent.