thank you please see that good morning the first case on the docket his agenda number seven one two one one nine nine one two one two four one state chief justice reiners your boarding house may please the court i want to apologize in advance i seem to have acquired just hold in the last couple of days which is that at its height at this moment my timing is perfect so i power of attorney act applies to a successor agent under a power of attorney before he becomes an acting and empowered agent under that instrument the trial court in this case dismissed a complaint under section two to six fifteen for failure to state a cause of action alleged wrongdoing by rodney was that he participated in the breach of duty by his father by failing to inform his mother of that breach and to take action to safeguard her interest really simply what was  breach alleged in the complaint is the france for of an s a family farmland in which doris had an interest and a time when she was alleged to be incompetent and in need of income that is the stated reach in the in the complaint i question that in the if it's in the original appeal of the case as to whether or not that in the before the trial court as to whether or not that was in fact a recognized that is your duty and breach of law that rodney never became an agent under the people way and that no fiduciary duty ever developed and found the thomas was the designated agent attorney in fact under the peel it had all those powers and discretion that were granted him section to dish ten point three b a constant want a cause of action against the successor agent if he was aware of an imminent breach by a predecessor agent by failing to notify the principal or to safeguard the principals  is a stated holding in the opinion i paid seventeen appendix a thirty four the appellate court also held that session today is ten point three b and i quote imposes certain obligations upon successor engines under appeal way the court held that the statutory provision as written applies to successor agents but only when the successor region has knowledge of a new mini branch or a knowledge of the bridge itself and participates in it and that breach is done by another agent using the the actual term used in the statute itself another egypt the statute also uses predecessor  is holding the appellate court by the text of the opinion relied upon three essential bases and rationales for the for the holding first that the successor agent applied to successor agents because of the talk of the general provision secondly the court relied on the fact that the other two subsections a and c both clearly apply to successor agents those subsections use the three exact phrase successor agent in each so section eight defines what to say when a successor agent is subsection  c goes into detail about how a successor agent is required if requested to provide a certification of availability of the primary agent thereby gaining the mantle of authority as it an actual agent so your important that the that subsection a n c actually refer to exactly successor agent in subsection b does not it refers only to an agent being not being liable for the actions of another agent unless actions of another agent i believe that it's important because the omission of the word the words successor engine in subsection body of this particular statute there is no reason to believe that that is like here is a section on oh there are various scenarios your honor and i would submit that that the the the legislature was attempting to recite the general rule that there is no periods liability or strict liability by one agent for the actions of another which i think is recognized even in the common law including this it exception in doing so there are a variety of circumstances that can apply a an agent until he succeeds to that position the statute defines agent into destiny be it is the designated attorney in fact so a successor agent could become agreed that it has had to be is not it states that there a successor agent takes power when certain things happen and if those things don't happen you never becomes an agent in this case there  never an allegation there's no allegation in the complaint that this gentleman ever became an agent under the power of attorney to the teller for did not i'm sorry or is it your position then that you have no obligations because you never became the agent yes he had he he has no obligations under the act and he has no obligations under the power of attorney because he never became agent he was in the status only of a successor agent which has no power authority or otherwise of course provisions in this in the act they don't in the provisions don't even detract from any other some sections within two days ten point three or two days to point five it is a statement of the defined term age and when that agent can be liable which is generally not the rule but when the engine can be liable for the actions of another i believe that the fact that this is a specifically defined term and under two tend to this three d i'm sorry clearly indicates that the legislature intentionally left that language as if in the room had to be an agent otherwise it would if i could jump a little bit the appellate court of felt that if our theory was correct that our reading of the subsection would render the general rule that is stated in both sections of the statute stands clearly under the text as written and it doesn't impact neither statute is impacted by the other because the scenario covered is that a agent and another agent including if it might be involved in predecessor age the one thing that is clear is that nowhere in the act is a successor engine mentioned as being while for anything including this subsection successor agent is not used as a term the successor idjit never becomes an agent until he succeeds to that position one could be a successor agent forever and never become an agent that happens many times so i believe that the superflui there are several cameras of construction your honour's that relate to this case are our overall position is that the court engaged in iraq statutory attainment and giving effect to the intent of the legislature critically statutory definitions as indicated in the brief with authorities statutory definitions control in the construction of the terms of an act with statute defines the defines it terms those terms must be construed in accordance with the definitions and were words used in different sections of the same act a court presumes that it has the same meaning throughout the act uses agent everywhere it defines agent very specifically the only place that defines a successor agent is in subsection any of the particular statutory provision that we are speaking out today no person has  authority under the act or a power of attorney except the agent under a law and the act itself the power of attorney instrument the agency instrument controls notwithstanding the act this power of attorney is a statutory power of attorney head is clear and unambiguous in its terms as to who it is what those that what that agency authority is and who the designated successor agents are and what has to happen for them to receive the mantle of authority none of which is alleged to have occurred in this case any consolidated case excuse me and they consolidated your order since i need to deal with that i think in my twenty minutes the specific issue presented is whether a successor agent named an appeal way can be retroactive deemed the agent were attorney in fact on a specific date by way of a retroactive declaration of incompetency of the primary agent made by a physician you pillock court found that the power of case the physician's report was acquired over two years after the transaction it is you when the transaction occurred mr shelton was the successor agent the  just one situation like i've almost form they say there's a liability and when they say yes i believe so your honor i think justice carter was was dealing with the situation of yes it's clear that  e a success raising does not have any authority under a power of attorney until he is empowered and he has no fiduciary duty then i think he read that along with the definition of agent which is i and directly contradictory to the to the high holy in the consolidated case that successor regime has no power only the agent does so yes i i believe that that was his point and i we and that's what we're about here today is the problems that can occur with these because i tell my clients these can be abused now the advantages of the power using the power of attorney is that it mainly is outside the court system the instead of doing a guardianship we're regarding has to account to the court every year which cost money of instead of having to file and pay a reason people like the powers of attorney is the privacy aspect to it in other words when you have a guardianship in court there are many aspects of that that are open to public inspection and people don't like to see that they like the fact that they can use a power of attorney to have somebody manage their property for them especially at a time when they cannot do it themselves now this advantage that i've just outlined for you  can't be disadvantaged because i just mentioned powers of attorney can be abused and this is a particular situation where that's exactly happened and the advantage of being outside the court system becomes a disadvantage when we're trying to uncover fraud because this is what this case is all about is of a presumption of flawed human conveyance by an agent by parents to agent if he sees that other agent acting improperly so yes even though rodney shelton may not have been the ija at the time under ten point three he can be liable if he sees resign or refuse to accept the offers agent naming the following each to act alone successfully as my successors my age or my son rodney shelton he had moved up by virtue of the indicated incompetent would be where there was an actual guardianship or order stating that she is a disabled person and that didn't occur that did not occur but it was not required or honor because it says or the very end of that or is a person unable to give prompt an intelligent consideration to business matters of certified by a licensed physician and that's were provided so no there was not an adjudication now getting back to this this idea of the the disadvantage of the power of attorney is the fact that it is outside the court system and therefore fraud cannot be uncovered my clients living in texas for denying his mother the right to the income from the farm would at a time when she needed a belly and also of course eventually denying my client who was to receive half your state when the parents died so i have seen these powers of attorney be used in a fraudulent situation to conceal i mean people who commit fraud always want to conceal that fraud don't play and i have seen these tours of the tourney used in the family where they have used it to keep the other family members in the dark and so that they cannot ask questions so they cannot uncover fraud and so we have a situation here to where my client doesn't even know about this fraudulent activity on her brother's part until after the parents have died and only with the fog and activity and the brother or the fraud well there's a presumption of fraud of course where he gets in the case where thomas gave him a deed there's a presumption of draw the statutory or whether this is a common law that it's a an agent who receives any transaction with the principal there's a presumption of fraud there rises and he has been agent or you just have to be the agent on poverty turn that's why it was important that we establish the doors was not the in that rodney had moved up to the first position but in yours in that situation are you talking about the actions of promise the father who conveyed before him it was son right bet is that that created the presumption of fraud because rodney was thomas agent yeah yeah you know wasn't acting though was a i'm sorry it wasn't acting as thomas agent it was designated well we don't know exactly what he was doing virtue of the power of attorney language and by virtue of the fact that his mother was unable to give prompt an intelligent consideration to business matters a certified by her licen she was no longer be agent under thomas's power of attorney and therefore rodney moved up into that position so you're arguing that that if thomas as the principle makes a deed to someone who has been designated as a power of attorney even though he doesn't do the action the designated age and in fact it's a medical problem like stepping the presumption of fraud arises because rodney it came his father's  isn't a classical thought on that he sumption based upon the agent actually doing the conveying and there's a presumption of broad is that not necessary no no i mean appellate court cited that in their opinion that is not that creates a presumption of fraud the other case is that they used doris's power of attorney she had a power of attorney which named tom the father and ronnie as  backup they didn't have doris signed the deed to rodney like they did thomas they had thomas as agent under doris's power of attorney signed the deed that's why we're there i mean it and that seems to be a key piece i mean certainly thomas has the authority to transfer his own property rights he does that you know and because he's the that power of attorney and people being able to rely upon in this situation we're not dealing with third parties here we're dealing with family members although not all of whom know what's going mother was fine or not well i think you know your mother was not fine but that but that doesn't necessarily mean that she runs out and gets an adjudication or a physician's report when there is no reason to do that that's again the privacy thing many people don't want to do that until it's necessary to do well when she learned that her brother had done this and she had to go back and do it i was her father had done  that her father had done it her father had transferred the property right right and the power of attorney language does not say that it can't be done two years later they talk about at the time when is was  and he is obviously here fighting to hold on to that farm he had full knowledge of what was being done here he accepted the deed now let's look at the policy of the appellate court here that they announced your honor you made a mention of just a minute ago is that the hell a chorus of look if we can go back two and three years later and then do a power tranny that can be a real problem an absolutely i agree you have third parties it rely upon a power of attorney but we're not talking about third parties here we're talking about doris shelton it designated agent being incompetent we're not talking about doris shelton acting is the agent because the policy that they announced would apply if doris had signed things and then years later we went back and show that she was incompetent try to undo that that's not what this case is about this case is about showing a she was not the agent under the power tourney and therefore rodney moved up by virtue of the language of the power of attorney so the policy should be that in that instance you can't go back and retroactively show that someone could not have been the agent the city does a designated agent after do anything except the duties as agent  the statute states that you know the agent does not have to accept the duties at all ok but here in this case rodney was obviously involved in this transaction and that's why your policy i think that you need to announce here is very important it isn't is it important to know whether rodney knew that he was designated if he didn't know that he was didn't accept the deed he has on the farms claimed ownership of the farms for the last four years five years six years and then he's fighting to hold on to him here so for him to sit there and say well i didn't know i got these farms with no i'm saying he didn't know that he was other egypt when the legislature i think realized that there was going to be a problem here that you may have successor agents watching another asian ahead of them do something a hearse a princip of the legislature intended knowing that successor agents were not agents under the act i believe that the legislature would have had the wisdom to have included successor agents enter in the definition of an agent or in subsection b of the act at issue it's remarkable that there is no reference to successor agents in their provision only agents which is completely which completely comports with the common law and the statutory law that the agent is the one who has power and a fiduciary duty to the principal mr hope i think goes outside the record a bit but i  not going to take anyone to task on that i think this is a case on the pleadings your honour's and to clarify because it can get a little confusing because there are two cases they are different legal theories there is no question rest of the agency is power of attorney thomas was the agent my client was the successor agent that's the statutory action that we are appealing the entire theory is based on two  three b there are no allegations of actual fraud anywhere in either of these cases in terms of the consolidated case two years later i guess we could almost use no pro tunc back two years later because of this subsequent physicians report in this negation that they had makes all the legal purposes rodney shelton the agent under that power of attorney that's what the impact of that cases and that's what the impact of their position is and the appellate court rightly disagreed with that date paragraph eight of the statutory powers of attorney involved in these cases your honour's is very clear and it talks about designation of a successor agent and when what has to happen for one to become an agent and it says upon certain events it doesn't say upon certain events happening whenever a decade from now the the temporal relationship is clear in the power of attorney it is something that needs to be done now in as of that moment when it is done under the power of attorney everybody can know that the successor regime is knowledge everybody knows that you can't a court there's no difference in that we're a physician's certification of incompetency they have to happen at a certain time and that's the time they become effective period strictly construed power of attorney and the clear not a big use language of this power to these powers of attorney indicates just that it's all i have thank you thank you like roger shelton to do what he has done here we need to have a strong policy throughout the state of illinois that says work with third parties are not involved and that's exactly what we're dealing with  dealing with third parties that are going to be damaged by doing this right to active of recognition that she was incompetent and moved right here it's only going to affect rodney shelton and it's only  affect my client and ronnie shelton knew that his mother was incompetent at the time and he knew he was gauging of the power of attorney and he knew that he was getting his father to do something that was wrong and so was the policy of this court was a policy of the state in the big that we're going to allow that or trees to point to this case someday and say hey you can get away with those because you can't you can't find out the juror of mother was incompetent at the time you didn't go and have the physician's report you didn't go into court hindsight is twenty twenty and so this is a very important case i really believe in powers of attorney the wonderful instruments and i want to can keep drawing them for my clients but i deal with the abuses of them quite often and this is one of them let's not encourage and enable the abusers to abuse the powers of attorney