2017 IL 121199

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket Nos. 121199, 121241 cons.) 

In re ESTATE OF THOMAS F. SHELTON (Ruth Ann Alford, Executor, Appellant v. 

Rodney I. Shelton, Appellee). 

Opinion filed May 18, 2017.

JUSTICE BURKE delivered the judgment of the court, with opinion. 

Chief Justice Karmeier and Justices Freeman, Thomas, Kilbride, Garman, and 

Theis concurred in the judgment and opinion. 

OPINION

¶ 1 The two consolidated appeals before this court concern the duties owed by an 

agent to a principal under a power of attorney for property. Ruth Ann Alford was 

named as executor of the estates of her parents, Thomas and Doris Shelton, 

following their deaths in 2012. In her capacity as executor, Ruth Ann filed two 

actions on behalf of the estates in the circuit court of Grundy County against her 

brother, Rodney Shelton. Both actions concerned quitclaim deeds signed by 
- 2 - 

Thomas in 2011 which conveyed farmland to Rodney and his wife. At the time of 

these transactions, Rodney was designated as the successor agent under both 

Thomas’s and Doris’s powers of attorney. The estates alleged that Rodney 

breached his fiduciary and statutory duties as an agent by personally benefitting 

from the real estate transactions. 

¶ 2 The circuit court dismissed both actions pursuant to sections 2-619(a)(9) and 

2-615 of the Code of Civil Procedure (Code) (735 ILCS 5/2-615, 2-619(a)(9) (West 

2010)), respectively. The cases were consolidated on appeal. The appellate court 

affirmed the dismissal of the action involving Thomas’s estate and reversed the 

dismissal of the action involving Doris’s estate. In re Estate of Shelton, 2016 IL 

App (3d) 140163. For the reasons that follow, we find that both actions were 

properly dismissed by the circuit court. We thus affirm in part and reverse in part 

the appellate court’s judgment.

¶ 3 BACKGROUND

¶ 4 On January 18, 2005, Thomas and Doris each executed durable powers of 

attorney using the “Illinois Statutory Short Form Power of Attorney for Property.” 

The documents were substantively identical, with the principals—Thomas and 

Doris—designating each other as their agent, also known as an “attorney-in-fact.” 

Among other powers, they granted the agent the power to sell or otherwise dispose 

of real property during the principal’s lifetime after the principal became disabled. 

Both principals designated their son, Rodney, as the successor agent and their 

daughter, Ruth Ann, as the successive successor agent. The documents include the 

following paragraph pertaining to successor agents: 

“8. If any agent named by me shall die, become incompetent, resign or 

refuse to accept the office of agent, I name the following (each to act alone and 

successively, in the order named) as successor(s) to such agent: 

 my son Rodney I. Shelton 

 my daughter Ruth Ann Alford 

For purposes of this paragraph 8, a person shall be considered to be 

incompetent if and while the person is a minor or an adjudicated incompetent or 
- 3 - 

disabled person or the person is unable to give prompt and intelligent 

consideration to business matters, as certified by a licensed physician.” 

¶ 5 On December 1, 2011, Thomas executed two quitclaim deeds conveying 100% 

of the interest in two plots of farmland to Rodney and his wife, Regina Shelton. The 

first plot was owned solely by Thomas. The second plot was owned jointly by 

Thomas and Doris.1 The quitclaim deed pertaining to the second plot was signed by 

Thomas, individually, and by Thomas as “attorney-in-fact” for Doris. As of the 

date of these transactions, Doris had not been adjudicated incompetent or disabled 

by a court. Nor had a licensed physician certified that Doris was unable to give 

prompt and intelligent consideration to business matters. 

¶ 6 Thomas died on October 9, 2012. Doris died on December 20, 2012. Ruth Ann 

was named the executor of both estates. 

¶ 7 I. Appeal No. 121241 

¶ 8 On December 2, 2013, Ruth Ann filed an amended citation in the circuit court 

on behalf of Thomas’s estate, pursuant to section 16-1 of the Probate Act of 1975 

(755 ILCS 5/16-1 (West 2010)), to discover information and/or recover the 

farmland conveyed to Rodney and his wife. The estate alleged that, at the time of 

the conveyances on December 1, 2011, Doris had been diagnosed with dementia 

and was incompetent. According to paragraph 8 of Thomas’s power of attorney, the 

successor agent was to succeed to the status of agent “if and while” Doris, the 

designated agent, was incompetent. Accordingly, the estate alleged that Rodney, 

not Doris, was Thomas’s agent on December 1, 2011. 

¶ 9 The estate further alleged that, under Illinois law, any conveyance of property 

from a principal to an agent under a power of attorney is presumptively fraudulent. 

Based on the presumption of fraud inherent in the transactions, the estate requested 

that the deeds be set aside and the property returned to Thomas’s estate. 

 1

According to the record, at times during the proceedings, the parties referred to the 

second farm as being owned solely by Doris rather than jointly owned. For purposes of this 

opinion, we need not resolve this discrepancy. The relevant, undisputed fact is that the 

second quitclaim deed conveyed all of Doris’s interest in the farm to Rodney and his wife. 
- 4 - 

¶ 10 Rodney filed a motion to dismiss the amended citation pursuant to sections 

2-615 and 2-619(a)(9) of the Code (735 ILCS 5/2-615, 2-619(a)(9) (West 2010)). 

He argued that Doris was still Thomas’s agent on December 1, 2011, since she was 

not “incompetent” as defined in the power of attorney. As of that date, Doris had 

not been adjudicated incompetent or certified incompetent by a licensed physician. 

Since a successor agent has no fiduciary duties to a principal, there is no presumed 

fraud arising from a transaction between the successor agent and the principal. 

Rodney thus asserted that the amended citation failed to plead a legally sufficient 

claim for setting aside the deeds. 

¶ 11 In response, the estate filed a supplemental physician’s report dated January 30, 

2014, by Dr. Daniel Jurak, Doris’s treating physician. The report stated that Doris 

experienced an onset of confusion in March 2011 and was diagnosed with dementia 

in October 2011. Dr. Jurak averred that on December 1, 2011, Doris was 

incompetent, unable to manage her personal affairs, and unable to give prompt and 

intelligent consideration to her business matters. 

¶ 12 The trial court granted Rodney’s motion to dismiss the amended citation under 

section 2-619 based on the language in the power of attorney. The appellate court 

affirmed the trial court’s dismissal, with one justice dissenting. 2016 IL App (3d) 

140163. The majority held that a certification of incompetence signed two years 

after the execution of the deeds could not retroactively establish Doris’s 

incompetency. Id. ¶¶ 24-26. Therefore, there were no grounds to support the 

estate’s claims. Id.

¶ 13 II. Appeal No. 121199 

¶ 14 On March 24, 2014, Ruth Ann filed a complaint on behalf of Doris’s estate 

alleging that Rodney breached his statutory duties to Doris under section 2-10.3(b) 

of the Illinois Power of Attorney Act. 755 ILCS 45/2-10.3(b) (West 2010). Section 

2-10.3(b) provides: 

“(b) An agent is not liable for the actions of another agent, including a 

predecessor agent, unless the agent participates in or conceals a breach of 

fiduciary duty committed by the other agent. An agent who has knowledge of a 

breach or imminent breach of fiduciary duty by another agent must notify the 
- 5 - 

principal and, if the principal is incapacitated, take whatever actions may be 

reasonably appropriate in the circumstances to safeguard the principal’s best 

interest.” Id. 

¶ 15 The estate alleged that Thomas breached his common-law fiduciary duty as 

Doris’s agent by transferring all of her interest in the farm without reserving a life 

estate at a time when Doris was in need of income. The estate further alleged that 

Rodney, as Doris’s successor agent, breached his statutory obligation under section 

2-10.3(b) to notify Doris of Thomas’s breach or to safeguard her interests in the 

transaction. The complaint alleged damages to the estate in the amount of the value 

of the property as well as the income from the property during the remainder of 

Doris’s lifetime. 

¶ 16 Rodney filed a motion for judgment on the pleadings or, in the alternative, a 

motion to dismiss the complaint, under section 2-615 of the Code (735 ILCS 

5/2-615 (West 2010)). He argued that section 2-10.3(b) of the Power of Attorney 

Act does not apply to him because he was only a successor agent and had not 

attained the status of agent at the time of the transactions. Thus, he had no statutory 

duties to Doris. The trial court agreed and dismissed the complaint with prejudice. 

¶ 17 The appellate court, with one justice dissenting, reversed the trial court’s 

judgment and remanded for further proceedings. 2016 IL App (3d) 140163. The 

majority held that the duties imposed by section 2-10.3(b) apply to an individual 

designated as a successor agent in a power of attorney. Therefore, the court held, 

the estate’s complaint stated a legally cognizable claim against Rodney. Id.

¶¶ 36-40. 

¶ 18 The appellate court thus held in Rodney’s favor in the first case and in Doris’s 

estate’s favor in the second case. The parties filed petitions for leave to appeal in 

this court. We allowed both petitions (Ill. S. Ct. R. 315 (eff. Jan. 1, 2015)) and 

consolidated the two appeals for our review.
- 6 - 

¶ 19 ANALYSIS

¶ 20 I. Appeal No. 121241 

¶ 21 At issue in this appeal is whether Rodney breached a common-law fiduciary 

duty to Thomas when he personally benefitted from the real estate conveyances on 

December 1, 2011. The trial court dismissed the amended citation filed by 

Thomas’s estate pursuant to section 2-619(a)(9) of the Code (735 ILCS 

5/2-619(a)(9) (West 2010)). In deciding a section 2-619 motion, a court accepts all 

well-pleaded facts and their inferences as true and construes all pleadings and 

supporting documents in favor of the non-moving party. Bjork v. O’Meara, 2013 IL 

114044, ¶ 21. Under section 2-619(a)(9), a defendant is entitled to a dismissal if 

“the claim asserted against defendant is barred by other affirmative matter avoiding 

the legal effect of or defeating the claim.” 735 ILCS 5/2-619(a)(9) (West 2010). 

Our review of an order granting a section 2-619 motion is de novo. Henderson 

Square Condominium Ass’n v. LAB Townhomes, LLC, 2015 IL 118139, ¶ 34. 

¶ 22 An individual holding a power of attorney is a fiduciary as a matter of law. 

Clark v. Clark, 398 Ill. 592, 600 (1947); In re Estate of DeJarnette, 286 Ill. App. 3d 

1082, 1088 (1997) (citing Pottinger v. Pottinger, 238 Ill. App. 3d 908, 917 (1992)). 

Thus, an agent appointed under a power of attorney has a common-law fiduciary 

duty to the principal. Spring Valley Nursing Center, L.P. v. Allen, 2012 IL App (3d) 

110915, ¶ 12; see also 755 ILCS 45/2-7(a), (b) (West 2010) (codifying the agent’s 

duty of care owed to the principal for purposes of the Power of Attorney Act). The 

fiduciary relationship between the principal and agent begins at the time the power 

of attorney document is signed. In re Estate of Miller, 334 Ill. App. 3d 692, 697 

(2002); In re Estate of Rybolt, 258 Ill. App. 3d 886, 889 (1994). 

¶ 23 A presumption of fraud arises when a fiduciary benefits from a transaction 

involving the principal. In re Estate of DeJarnette, 286 Ill. App. 3d at 1088. Under 

a power of attorney for property, “any conveyance of the principal’s property that 

either materially benefits the agent or is for the agent’s own use is presumed to be 

fraudulent.” Spring Valley Nursing Center, L.P., 2012 IL App (3d) 110915, ¶ 12. 

“This rule applies to conveyances of the principal’s property by the agent to a third 

party on behalf of the principal and also to conveyances made by the principal 

directly to the agent.” Id. (citing Clark, 398 Ill. at 601, In re Estate of Rybolt, 258 

Ill. App. 3d at 889, In re Estate of Pawlinski, 407 Ill. App. 3d 957, 963-68 (2011), 
- 7 - 

and In re Estate of DeJarnette, 286 Ill. App. 3d at 1088-91). Once a fraudulent 

transaction has been alleged, the burden then shifts to the agent to prove by clear 

and convincing evidence that the transaction was fair and did not result from his 

undue influence over the principal. In re Estate of Miller, 334 Ill. App. 3d at 

697-98. 

¶ 24 The estate makes two arguments on appeal to this court. First, it contends that 

Illinois law imposes a fiduciary duty on Rodney by virtue of his being named as a 

successor agent in Thomas’s power of attorney. We disagree. The Power of 

Attorney Act, which codifies an agent’s fiduciary duty, recognizes that it is the 

agent’s exercise of power pursuant to the authorizing document which triggers the 

agent’s duty to the principal. See 755 ILCS 45/2-7(a) (West 2010) (“Whenever a 

power is exercised, the agent shall act in good faith for the benefit of the principal 

using due care, competence, and diligence in accordance with the terms of the 

agency ***.”). By definition, a successor agent’s authority to act on behalf of the 

principal is contingent upon the initial agent’s resignation, death, incapacitation, or 

refusal to serve. 755 ILCS 45/2-10.3(a) (West 2010). Until one of these events 

occurs, the successor agent has no authority to act. See id. Under the Power of 

Attorney Act, if an individual cannot exercise the powers granted by the agency, he 

has no duty to act in good faith for the principal’s benefit. 755 ILCS 45/2-7(a) 

(West 2010). Thus, we can infer that the Power of Attorney Act does not impose 

any duties on a successor agent until that person is authorized to exercise the 

powers set forth in the power of attorney. 

¶ 25 Consistent with these principles, the plain language of Thomas’s power of 

attorney appointed Rodney as agent only upon the occurrence of a specific 

contingency, i.e., “if any agent named by me shall die, become incompetent, resign 

or refuse to accept the office of agent.” Therefore, Rodney’s authority to act on 

behalf of Thomas did not arise until Doris died, became incompetent, or became 

unwilling to act as an agent. Until that time, Rodney owed no fiduciary duties to 

Thomas. 

¶ 26 The estate cites Spring Valley Nursing Center, L.P., 2012 IL App (3d) 110915, 

and In re Estate of Elias, 408 Ill. App. 3d 301 (2011), in support of its argument 

that a successor agent owes a fiduciary duty to the principal. Both are inapposite. 

Neither decision pertains to the estate’s claim of a duty owed by a “successor 
- 8 - 

agent.” Rather, both cases concern the duties owed by an individual named as an 

“agent” in a power of attorney. See Spring Valley Nursing Center, L.P., 2012 IL 

App (3d) 110915, ¶¶ 15-16 (a person designated as an agent in a power of attorney 

has the burden to rebut a presumption of fraud arising out of the transfer of a life 

estate from the principal to the agent); In re Estate of Elias, 408 Ill. App. 3d at 320 

(a power of attorney gives rise to a general fiduciary relationship between the 

principal and the agent at the time the document is executed, regardless of when the 

power of attorney is “activate[d]”). 

¶ 27 The estate also relies on section 2-10.3(b) of the Power of Attorney Act (755 

ILCS 45/2-10.3(b) (West 2010)), arguing that the statute imposes certain duties 

owed by a successor agent to a principal. However, this statute is simply irrelevant 

to the issues involved in this appeal, as it pertains to an agent’s participation in, or 

knowledge of, a breach of fiduciary duty committed by another agent. Thomas’s 

estate does not claim that another agent other than Rodney breached a fiduciary 

duty. It claims that Rodney breached his own fiduciary duty to Thomas solely 

based on his position as Thomas’s successor agent. 

¶ 28 Thus, the estate has not cited, nor has this court found, any Illinois precedent 

holding that an individual designated as a successor agent under a power of 

attorney has a common-law fiduciary duty to the principal. We therefore reject the 

estate’s claim that Rodney owed a fiduciary duty to Thomas prior to becoming an 

authorized agent. 

¶ 29 The second argument raised by the estate is that Rodney was actually Thomas’s 

agent at the time of the conveyances; therefore, the conveyances were 

presumptively fraudulent. See Spring Valley Nursing Center, L.P., 2012 IL App 

(3d) 110915, ¶ 12. The estate’s claim for relief depends on the legal statuses of 

Doris and Rodney on December 1, 2011. If Doris was incompetent on that date, she 

was no longer Thomas’s agent. Under the successor provision in paragraph 8 of 

Thomas’s power of attorney, Doris’s incompetency would have activated Rodney’s 

status as agent, with all the powers and duties attached to that status. However, if 

Doris was not incompetent, Rodney was merely a successor agent and owed no 

fiduciary duties to Thomas. 

¶ 30 The estate argues that the physician’s report signed on January 30, 2014, is 

sufficient evidence to prove Doris’s incompetency on December 1, 2011. The 
- 9 - 

appellate court rejected this argument because the language in the power of 

attorney document precludes a retroactive certification of incompetency. 2016 IL 

App (3d) 140163, ¶¶ 24-27. We agree with the appellate court’s analysis. 

¶ 31 “A written power of attorney must be strictly construed so as to reflect the 

‘clear and obvious intent of the parties.’ ” Fort Dearborn Life Insurance Co. v. 

Holcomb, 316 Ill. App. 3d 485, 499 (2000) (quoting Crawford Savings & Loan 

Ass’n v. Dvorak, 40 Ill. App. 3d 288, 292 (1976), citing McHarry v. Bowman, 274 

Ill. App. 487 (1934)); see also Amcore Bank, N.A. v. Hahnaman-Albrecht, Inc., 326 

Ill. App. 3d 126, 135 (2001); In re Estate of Romanowski, 329 Ill. App. 3d 769, 774 

(2002). The language in Thomas’s power of attorney is clear and unambiguous. 

Paragraph 8 states that an agent is incompetent “if and while the person is a minor 

or an adjudicated incompetent or disabled person or the person is unable to give 

prompt and intelligent consideration to business matters, as certified by a licensed 

physician.” (Emphasis added.) 

¶ 32 As of the date of the quitclaim deeds, a licensed physician had not certified that 

Doris was unable to give prompt and intelligent consideration to her financial 

affairs, nor was there a judicial adjudication of incompetency. As explained by the 

appellate court, the most straightforward reading of the “if and while” language in 

paragraph 8 is that a physician’s certification “is meant to serve as a triggering 

event that nullifies the primary agent’s authority at the time of the certification and 

in the future, until the certification is rescinded.” 2016 IL App (3d) 140163, ¶ 25. 

Furthermore, the court held, “[n]othing in Thomas’s [power of attorney] suggests 

that a physician’s certification prepared years after the fact may retroactively 

nullify the designated agent-in-fact’s authority to act under the POA.” Id. Thus, 

according to the express language in the power of attorney, a physician’s 

certification of incompetency must have been rendered prior to the conveyances at 

issue in order to establish Doris’s incompetency. 

¶ 33 The estate argues that the appellate court’s construction of the power of 

attorney imposes an unreasonable burden on heirs and estate executors who may 

have no opportunity to discover that a fraudulent transaction has taken place until 

after the principal is deceased. Even if this were the case, however, it remains the 

estate’s burden to establish a legal claim based on the allegations in its amended 

citation. The estate has failed to do so. Because we must strictly construe the 
- 10 - 

language in the power of attorney to effectuate the principal’s intent, we may not 

read into it additional provisions, conditions, or limitations not expressly included 

in the instrument. See Amcore Bank, N.A., 326 Ill. App. 3d at 135; Fort Dearborn 

Life Insurance Co., 316 Ill. App. 3d at 499. We hold, therefore, that the estate’s 

amended citation was properly dismissed by the trial court. 

¶ 34 II. Appeal No. 121199 

¶ 35 In the complaint filed by Doris’s estate, the estate alleged that Rodney breached 

his statutory obligation as Doris’s successor power of attorney under section 

2-10.3(b) of the Power of Attorney Act (755 ILCS 45/2-10.3(b) (West 2010)). The 

trial court dismissed the complaint pursuant to section 2-615 of the Code (735 ILCS 

5/2-615 (West 2010)). A motion to dismiss under section 2-615 attacks only the 

legal sufficiency of a complaint. Schweihs v. Chase Home Finance, LLC, 2016 IL 

120041, ¶ 27 (citing Bonhomme v. St. James, 2012 IL 112393, ¶ 34). In reviewing a 

section 2-615 dismissal, a court must take all well-pled facts as true and determine 

whether the allegations, considered in the light most favorable to the plaintiff, are 

sufficient to state a cause of action upon which relief may be granted. Id. (citing 

Bonhomme, 2012 IL 112393, ¶ 34). Our review is de novo. Id. (citing Khan v. 

Deutsche Bank AG, 2012 IL 112219, ¶ 47). 

¶ 36 The issue in this appeal involves statutory construction, a question of law which 

we also review de novo. People v. Cherry, 2016 IL 118728, ¶ 13. Our primary goal 

in statutory interpretation is to ascertain and effectuate the legislature’s intent. 

People v. Giraud, 2012 IL 113116, ¶ 6. The best indicator of legislative intent is the 

statutory language itself, given its plain and ordinary meaning. Id. The words and 

phrases in a statute should be construed in light of other relevant provisions and not 

in isolation. People v. Gutman, 2011 IL 110338, ¶ 12. When determining the plain 

meaning of statutory terms, we must consider the statute in its entirety, bearing in 

mind the subject it addresses and the legislature’s apparent intent in enacting it. 

Schultz v. Performance Lighting, Inc., 2013 IL 115738, ¶ 12. Where the language 

of a statute is clear and unambiguous, we will apply it as written, without resort to 

extrinsic aids of statutory construction. State Bank of Cherry v. CGB Enterprises, 

Inc., 2013 IL 113836, ¶ 56. In addition, we must not depart from the plain meaning 
- 11 - 

of the statutory language by reading into it exceptions, limitations, or conditions 

not expressed by the legislature. Id. 

¶ 37 Section 2-10.3(b) of the Power of Attorney Act, which is part of a provision 

entitled “Successor agents,” provides as follows: 

“(b) An agent is not liable for the actions of another agent, including a 

predecessor agent, unless the agent participates in or conceals a breach of 

fiduciary duty committed by the other agent. An agent who has knowledge of a 

breach or imminent breach of fiduciary duty by another agent must notify the 

principal and, if the principal is incapacitated, take whatever actions may be 

reasonably appropriate in the circumstances to safeguard the principal’s best 

interest.” 755 ILCS 45/2-10.3(b) (West 2010). 

¶ 38 The estate’s complaint alleged that Thomas, as “primary agent” under Doris’s 

power of attorney, violated his fiduciary duty to Doris when he transferred all of her 

interest in the farm to Rodney and his wife without reserving a life estate in Doris at 

a time when she was incompetent and in need of income from the property. The 

complaint further alleged that Rodney participated in Thomas’s breach of fiduciary 

duty by failing to notify Doris of the breach and failing to take action to safeguard 

Doris’s best interests, in violation of section 2-10.3(b) of the Act. The estate 

argued, therefore, that Rodney was liable for any breach of fiduciary duty 

committed by Thomas. 

¶ 39 The circuit court dismissed the complaint because Rodney was not Doris’s 

“agent” at the time of the real estate transactions and, thus, could not be held liable 

under section 2-10.3(b). The appellate court disagreed and reversed the circuit 

court’s dismissal order, finding that section 2-10.3(b) applied to Rodney based on 

his designation as a successor agent in Doris’s power of attorney. 2016 IL App (3d) 

140163, ¶¶ 32-40. On appeal to this court, Rodney contends that he was not Doris’s 

“agent,” either as defined in the Power of Attorney Act or in the power of attorney 

itself. Therefore, Rodney argues, any duties imposed on an “agent” by section 

2-10.3(b) do not apply to him by definition. We agree. 

¶ 40 The plain language in section 2-10.3(b) of the Power of Attorney Act states that 

an agent may be liable for the actions of another agent, including a predecessor 

agent, if the agent participates in or conceals a breach of fiduciary duty by the other 
- 12 - 

agent. 755 ILCS 45/2-10.3(b) (West 2010). The statute further provides that an 

“agent who has knowledge of a breach or imminent breach of fiduciary duty by 

another agent must notify the principal and, if the principal is incapacitated, take 

whatever actions may be reasonably appropriate in the circumstances to safeguard 

the principal’s best interest.” Id. Thus, section 2-10.3(b) refers exclusively to the 

liability and duties of an “agent” with no mention of the qualifying word, 

“successor.” The term “agent” is used throughout the Act and is specifically 

defined in section 2-3(b) as “the attorney-in-fact or other person designated to act 

for the principal in the agency.” 755 ILCS 45/2-3(b) (West 2010).2 By contrast, 

section 2-10.3(a) states that a “successor agent” is designated to act only “if an 

initial or predecessor agent resigns, dies, becomes incapacitated, is not qualified to 

serve, or declines to serve.” 755 ILCS 45/2-10.3(a) (West 2010). 

¶ 41 Doris’s power of attorney named Thomas Shelton as her agent or 

attorney-in-fact to act on her behalf after she became disabled. As the designated 

successor agent, Rodney was authorized to act on Doris’s behalf only in the event 

of Thomas’s death, incompetence, resignation, or refusal to accept the office. None 

of these events had occurred as of December 1, 2011. Accordingly, on the date of 

the real estate conveyances, Rodney was merely Doris’s successor agent and was 

not yet her “agent” as defined in the Act. See 755 ILCS 45/2-3(b) (West 2010). 

Under the plain and unambiguous language in section 2-10.3(b), therefore, the 

duties and liability described in the statute do not apply to Rodney during the 

relevant time period. 755 ILCS 45/2-10.3(b) (West 2010). 

¶ 42 Despite the repeated references to an “agent” in section 2-10.3(b), the appellate 

court held that the provision imposes a “limited statutory duty,” in derogation of the 

common law, on a successor agent prior to becoming authorized as an agent. 2016 

IL App (3d) 140163, ¶ 38. Based on the fact that section 2-10.3 is entitled 

“Successor agents” and the other two subsections within that section both clearly 

apply to successor agents (755 ILCS 45/2-10.3(a), (c) (West 2010)), the court held, 

“it stands to reason that section 2-10.3(b) applies to successor agents as well.” 2016 

IL App (3d) 140163, ¶ 36. The appellate court thus held that Rodney could be held 

 2

An “agency” is defined, in part, as “the written power of attorney or other instrument 

of agency governing the relationship between the principal and agent or the relationship, 

itself, as appropriate to the context.” 755 ILCS 45/2-3(a) (West 2010). 
- 13 - 

liable for Thomas’s breach of fiduciary duty pursuant to section 2-10.3(b), even 

though Rodney himself owed no common-law fiduciary duty to Doris at the time of 

the conveyances. Id. ¶ 38. 

¶ 43 We disagree with the appellate court’s statutory analysis as it is contrary to our 

established canons of statutory construction. First, reading the term “successor 

agent” into section 2-10.3(b) contravenes the principle that a court may not read 

into a statute limitations or conditions not explicitly set forth in the plain statutory 

language. See Evanston Insurance Co. v. Riseborough, 2014 IL 114271, ¶ 23. “ ‘It 

is the dominion of the legislature to enact laws and it is the province of the courts to 

construe those laws. We can neither restrict nor enlarge the meaning of an 

unambiguous statute.’ ” Id. (quoting Petersen v. Wallach, 198 Ill. 2d 439, 448 

(2002)). The appellate court below essentially rewrote section 2-10.3(b) so as to 

modify and expand the meaning of “agent” under the Act and impose duties on an 

additional class of persons. The plain language of the statute does not permit such 

expansion. 

¶ 44 Secondly, if the legislature had intended to impose statutory liabilities and 

duties on successor agents in derogation of the common law, it would have made its 

intention explicit. See Sandholm v. Kuecker, 2012 IL 111443, ¶ 50. Nowhere in 

section 2-10.3(b) does the legislature expressly state that a successor agent owes a 

duty to the principal prior to being empowered to act on the principal’s behalf. 755 

ILCS 45/2-10.3(b) (West 2010). Under the common law, a successor agent has no 

duties to the principal prior to becoming an agent. It is improper, then, for a court to 

construe the enactment as more expansive than intended by the explicit statutory 

language. See Maksimovic v. Tsogalis, 177 Ill. 2d 511, 518 (1997) (“[a] legislative 

intent to abrogate the common law must be clearly and plainly expressed, and such 

an intent will not be presumed from ambiguous or doubtful language”); Heider v. 

Knautz, 396 Ill. App. 3d 553, 561 (2009). 

¶ 45 Finally, the language in section 2-10.3 as a whole indicates that the legislature 

was familiar with the term “successor agent,” as it is used in both subsections (a) 

and (c) of the same statute. See 755 ILCS 45/2-10.3(a), (c) (West 2010). Thus, the 

legislature must have intended for subsection (b) to have a different application 

when it used the general term “agent” to describe an agent’s liability for another 

agent’s breach. See People v. Hudson, 228 Ill. 2d 181, 193 (2008) (“[w]hen the 
- 14 - 

legislature uses certain language in one part of a statute and different language in 

another, we may assume different meanings were intended”). 

¶ 46 Having rejected the interpretation adopted by the appellate court, we believe the 

most natural construction of section 2-10.3(b) is that it imposes duties on a person 

initially named as a successor agent who has been authorized to act as an agent due 

to the predecessor agent’s disqualifying condition or event. This reading is 

consistent with the overall purpose of section 2-10.3, which allows a principal to 

designate one or more successor agents to act as her power of attorney in the event 

that the initial agent resigns, dies, becomes incapacitated, is not qualified to serve, 

or declines to serve. 755 ILCS 45/2-10.3 (West 2010). It is also consistent with the 

common-law imposition of a fiduciary duty owed by an authorized agent to a 

principal under a power of attorney. Thus, once a successor agent has assumed the 

duties of an agent, he may not participate in or conceal a breach of fiduciary duty 

committed by another agent, which may include a predecessor agent or co-agent. 

755 ILCS 45/2-10.3(b) (West 2010). 3 Furthermore, upon learning of another 

agent’s breach, the agent must notify the principal and take action to protect the 

principal’s interests. Id.

¶ 47 We hold, therefore, that the complaint filed by Ruth Ann on behalf of Doris’s 

estate failed to state a claim upon which relief could be granted because Rodney 

was not subject to the liability imposed by section 2-10.3(b) of the Act. 

¶ 48 CONCLUSION

¶ 49 For the foregoing reasons, we find that the circuit court properly dismissed the 

actions filed by the two estates. We thus affirm the appellate court’s judgment with 

 3

Section 2-10.5(c) of the Act, pertaining to co-agents, contains nearly identical 

language to section 2-10.3(b). 755 ILCS 45/2-10.5(c) (West 2010) (“An agent is not liable 

for the actions of another agent, including a co-agent or predecessor agent, unless the agent 

participates in or conceals a breach of fiduciary duty committed by the other agent. An 

agent who has knowledge of a breach or imminent breach of fiduciary duty by another 

agent must notify the principal and, if the principal is incapacitated, take whatever actions 

may be reasonably appropriate in the circumstances to safeguard the principal’s best 

interest.”).
- 15 - 

respect to appeal No. 121241 and reverse the appellate court’s judgment with 

respect to appeal No. 121199. 

¶ 50 Appellate court judgment affirmed in part and reversed in part. 

¶ 51 Circuit court judgment affirmed.